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The NewsLRF Number 137 October 2019NOT FOR SALE
INSIDE THIS ISSUE
By Madube Pasi Siyauya
The Government of the Republic of
Zambia has continued to losing huge
sums of money being paid out to
citizens as compensation for police
brutality and wrongful detention. The
Legal Resources Chambers (LRC) has
on behalf of the citizens been taking
several such matters to court which
have resulted in the state losing money
on account of police negligence and
unprofessional conduct. Legal
Resources Foundation Lawyer Likezo
Mung'ambata has advised the state to
surcharge officers who are causing the
State to lose huge sums of money
through compensation claims on
account of police negligence and
unprofessional conduct. He said the
state should start recovering the
monies compensated to police
brutality victims from the officers'
terminal benefits so as to deter them
from being unprofessional when
executing their police functions.
In one such case, Moses Saili and
Eunice Chisompola both of Chongwe thDistrict did on September, 28 2016,
whilst sitting outside Moses' shop in
Chongwe at around 11:30am suffer
gunshot wounds inflicted by two male
police officers stationed at Chongwe
Police Station who were purporting to
have been performing their police
duties. By reason of the said shooting,
Moses and Eunice sustained severe
wounds on their thighs and knee joint,
respectively. Moses and Eunice narrate
that after the shooting, they were
taken to Chongwe District Hospital the
same day where they were treated and
To Page 2 To Page 2
To Page 4
LRF Lawyer Advises the State to Surcharge Unprofessional Police Officers
By Madube Pasi Siyauya
The Legal Resources Foundation (LRF)
has assisted a pre-trial detainee access
medical services and bail pending trial
after he was severely tortured and
subsequently detained by the police in
Kaoma District.
Facts of the case are that sometime in
September, 2019, Ben Chileya received a
phone call from the police requesting
him to report to Kaoma Polica Station in
Kaoma District for questioning. When
Chileya reported to Kaoma Police Station
on September 21, 2018 as requested, he
was immediately arrested by the police
and charged with the offence of theft by
servant before being thrown into a
holding cell. He states that whilst in police
custody, he was tortured by the police
who wanted him to admit the charge
leveled against him but he denied ever
having done anything wrong. As a result
of the said beatings, Chileya sustained
severe bodily injuries which made it very
difficult for him to talk or walk. He states
that whilst he was still in great pain and
unable to walk or talk, the police handed
him over to the prisons authorities at
Mumbwa Correctional Facility on
September, 27, 2018, without taking him
to court first as per standard procedure.
LRF Assists Pre-trail Detainee Access Medical Services and Bail
thAllan Simakando was on 28 February,
2018 apprehended by Mr. Daniel Mangubi
a police officer stationed at Kabwata
ZESCO Police Post in Lusaka and was
subsequently detained at Chilanga Police th
Station on allegation that he did on 28
February, 2018, whilst offloading a truck
laden with bags of chicken feed at his place
of work, Chinavimu Investments Limited
based in the district of Kafue, steal 33 bags
thereof property of his said employer.
He states that following revelations made
by the loaders of the said truck that the said
33 bags were actually off loaded
somewhere in Lusaka by the driver of the
truck before it (the truck) even reached
Kafue, the police, with the help of the st
loaders, did on 1 March, 2018 manage to
recover all the 33 bags from a named place
in Lusaka and apprehended the people
who were found in possession of the same.
Following the recovery of the said bags, the stpolice did on 1 March 2018 proceed to
release everybody who was apprehended
Kafue Man Compensated K50,000 by the State for Unlawful Detention
Felix Haakamwaya
Letters To Th Editor Page 2e Two Lusaka men Sue ZESCO Over Electrocution
Page 3Programme for Legal Empowerment and Enhanced
Justice Delivery Project Making Justice Available To Women, Children and Persons with Disabilities
Page 6 - 7Police Officer Leaves Lusaka Man with Severe Bodily
Injuries Page 8Debt Collection is Not A Police Responsibility Page 9Dismissed Judicial Worker Seeks Reinstatement after High Court Acquittal Page 11
2
EDITOR: All those wishing to receive a copy of The LRF News and are in places that we do not have centres should send us details on how we could send the Newsletter to them.However, we will ask you to bear the cost of postage because our mailing list is long and we can not afford to send every one a copy.
Letters to the Editor
The LRF Mail Bag,P. O. Box 35162Lusaka - ZambiaTel: 221263 Fax: 221287E-mail:[email protected]
Something to say?Write to
Letters/News
The Legal Resources Foundation NEWS October 2019
Dear Editor,
I write to make a follow up on what
has been said before by some people
on the issue of translating the LRF
Newsletter in various vernacular
languages to enable some of the
people who do not read and
understand English benefit.
Some people have appealed to your
office requesting for the translation
of the LRF newsletter but you have
not given your response on the
matter.
We would like to know if we stand any
chance of having the newsletter
translated as per our request. As you
know the Newsletter is very
educative on issues of human rights
and we do not want to be left out. If
at all plans to translate the newsletter
are underway, how soon is that?
Waiting to hear from you.
Yours faithfully,
Chilufya Mulenga
Dear Chilufya,
The Foundation is still considering
the possibility of translating the LRF
Newsletter in various vernacular
languages. However, it is due to
limited funds that it has not been
possible to translate the newsletter
in vernacular languages of Zambia.
You know we depend on donor funds
which are only enough to produce
the Newsletter in English. We have
not given up the translation of the
Newsletter although we do not know
when we shall start.
Request to Translate LRF Newsletter
When LRF Legal Officer Simon Sokontwe
visited Chileya at Mumbwa Correctional thFacility on 12 October, 2018, Chileya,
who was visibly in great pain with swollen
feet and arms, informed Sokontwe that
he had never appeared before any court
of law since his arrest and that he did not
even know when he would be appearing
before court. When Sokontwe requested
the Officer in Charge at Mumbwa
Correctional Facility for a Remand
Warrant, he noticed that Chileya was due
to appear before the Mumbwa thSubordinate Court on 17 October, 2018
but when he made a further follow up
with both the Mumbwa Subordinate
Court and the National Prosecutions
Authority (NPA) Mumbwa Office, he was
advised by both that they did not have
that date in their diaries. As a result of the
aforesaid, Sokontwe made sure that
Chileya's matter was duly cause listed
without further delay. When Chileya
finally appeared before the Mumbwa
Subordinate Court, he was released on
bail by the court which also ordered the
police to issue him with a Police Medical
Report to enable him seek medical
attention for his injuries. LRF is currently
awaiting further instructions from Chileya
to commence civil proceedings against
the State for compensation for personal
injuries.
LRF Assists Pre-trail Detainee Access Medical Services and BailFrom Page 1
in connection with the said alleged offence
with the exception of Allan who remained
in custody until he was granted police thbond on 8 March 2018 with the assistance
of Mr. Masandiko, a police officer stationed
at Chilanga Police Station. Allan contends
that the police had no reasonable cause to thapprehend and detain him from 28
thFebruary, 2018 to 8 March 2018 as they
had already been informed by the loaders
stof the truck on 1 March 2018 that he was
not in any way involved in the alleged theft
of the said bags. By reason of the matters
complained of above, Allan sued the State
for damages for unlawful detention
together with interest and costs, and
following successful negotiations which
ensued with the state, Allan agreed to be
paid the sum of K50, 000.00 as
compensation in full and final settlement
of all his claims against the State.
Kafue Man Compensated K50,000 by the State for Unlawful DetentionFrom Page 1
Benson Chileya
153News
Two Lusaka men Sue ZESCO Over ElectrocutionBy Madube Pasi Siyauya
Two Lusaka residents have sued ZESCO
Limited and Tenacity Construction
Limited their former employer seeking
compensation for the injuries, which they
sustained due to alleged negligence of
the two companies. Trial has since been
concluded by the Lusaka High Court and
the parties have since filed their
respective written submissions and now
await delivery of judgment.
According to the Statement of Claim filed
in the Lusaka High Court by their
Advocates, Legal Resources Chambers,
Noah Banda and Benson Matongo state
that they were employed by Tenacity
Construction Limited in 2016 as
Linesmen, which was contracted to erect
poles and install electric lines and
transformers by ZESCO. They state that
on November 18, 2016 whilst on duty at
13 Miles along Great North Road, they
were electrocuted as they were installing
electric lines for ZESCO causing them
severe electrical burns. They further state
that the accident happened when ZESCO,
through its employees, restored the
supply of 11kV of power to the electric
line which they were still installing
without giving them prior notice or
warning them before restoring the supply
of electricity to the said power line. They
also assert that neither ZESCO nor
Tenacity had provided them with
appropriate protective clothing and
gloves before instructing them to
undertake such a highly dangerous task.
They further state that as a result of the
said mishap, Banda had his left arm
amputated on December 2, 2016, and
had his skin grafted resulting in him
suffering severe permanent disability,
while Benson suffered a fractured right
ulna bone and numbness of his right
hand including severe skin burns.
They further state that after the accident,
they were admitted at the University
Teaching Hospital for almost four months
and after their discharge from the
hospital, they continued receiving
treatment as out-patients. They are
therefore claiming, among other things,
damages for personal injuries caused by
the negligence of the two companies.
October 2019 The Legal Resources Foundation NEWS
Noah Banda
24 News
From Page 1
later referred to Levy Mwanawasa
General Hospital for further treatment.
Thereafter, the duo instructed Legal
Resources Chambers to issue court
process against the State for damages
for personal injuries, among other
things. When the State failed to file any
defence in the High Court, LRC
proceeded to enter a default judgment
against the state after which the state
agreed to pay the duo K75,000.00 each
as compensation.
In another similar case, the State has
agreed to pay a man of Lusaka,
Bernard Lungu, the sum of K60,000.00
as compensation for being subjected
to police brutality. Facts in this case
indicate that when Bernard Lungu was
quarrelling with his cousin on January th16 2016 at Jordan Bus Station along
Freedom Way in Lusaka, four police
officers, without warning, fired teargas
at them before descending on Lungu
and beat him up using kicks and shot
batons. As he was being beaten,
Bernard fell onto the ground and one
of the police officers deliberately
stepped on his left leg with force hence
breaking it and causing him severe
injuries.
Thereafter, the four officers left him
lying on the ground helpless and he
was only rushed to the University
Teaching Hospital by onlookers where
he was treated for the injuries. The
medical report signed by medical
personnel revealed that Lungu had
sustained a fractured left leg
prompting him to approach the
Human Rights Commission who
referred him to Legal Resources
Foundation for legal assistance.
Acting on Lungu's instructions, Legal
Resources Chambers instituted legal
proceedings in the Lusaka High Court
against the State claiming, among
other things, damages for personal
injuries prompting the State to make a
proposal to settle the matter out of
court.
Lungu has since accepted to be paid
the sum of K60,000.00 in full and final
settlement of all his claims against the
state. In yet another case of police
brutality, the Lusaka High Court has
ordered the State to pay a Lusaka
resident the sum of K15,000.00 being
compensation for personal injuries
suffered at the hands of the police.
Facts in the matter are that when Felix
Haakamwaya went to the Ministry of
Health headquarters to deliver a letter thon March 10 2015, he found a police
officer at the reception, who refused to
receive the letter and ordered him to
leave the premises.
Haakamwaya explained that the
officer then started dragging him
towards the exit and in the process
pushed him to the ground causing him
severe injuries. As a result of the said
injuries, Haakamwaya was admitted to
the University Teaching Hospital (UTH)
with a fractured arm. With the help of
Lega l Resources Foundat ion ,
Haakamwaya successfully sued the
state for damages for assault and
battery; among other things and after
trial he was awarded the sum of
K15,000.00 in a judgment delivered by
High Court Judge Justice M. Chanda.
As for matters relating to unlawful
detention a man of Lusaka was
awarded K45,000.00 as compensation
for unlawful detention. Facts in the
matter are that Lovemore Gondwe was th
on September, 27 , 2014 arrested and
detained at Lusaka Central Police
Station where he was charged with the
offence of breaking into a building and
committing a felony therein. He
appeared before the Subordinate thCourt on 13 October, 2014 and was
later detained at Kamwala Remand th th
Prison from 13 October, 2014 to 6
March, 2015 when he was acquitted by
the Court.
Lovemore later instructed LRF to sue
the state in the Lusaka High Court for
damages for unlawful detention after
which the state agreed to pay him
through a consent judgment the sum
of K45,000.00 as compensation in full
and final settlement of all his claims
against the state. In yet another case,
Felix Chileshe of Kamwala South in
Lusaka spent almost five years in
remand before being acquitted of
murder by the Lusaka High Court.
Facts in the matter are that Chileshe ndwas on September, 22 2013, arrested
by one Chief Inspector Godfrey
Chinyama and was later detained at
Chawama Police Station for 27 days
before being taken to Court on th
October, 18 2013 on a charge of
murder.
He was accused of having killed his
own 13 year old biological daughter th
who died on September, 7 2013 from
head injuries.
By reason of the above, Chileshe was
remanded at the Lusaka Central th
Correctional Facility from October, 18 th
2013 to May, 18 2018 when he was
acquitted by the Lusaka High Court.
Chileshe states that the police had no
reasonable or probable cause to arrest
and charge him with the offence of
murder in that an officer by the name
of Sergeant Katontoka of Chawama
Police Station in Lusaka, who collected
the deceased's body from the crime
scene, knew or ought to have known
that the deceased died from natural
causes. He states that his daughter had
white foam coming out from her
mouth when her body was collected
by Sergeant Katontoka.
He states that his daughter was
epileptic and must have sustained the
said head injured after she suffered an
epileptic seizure in the absence of
other family members including Felix.
As a result of his prolonged detention
in remand at the Lusaka Central
Correctional Facility, Chileshe lost his
job as a mechanic and has therefore
instructed Legal Resources Chambers
to issue court process against the state
for the recovery of damages for
unlawful detention for the close to 5
years he spent behind bars. LRC is still
studying the matter for possible
litigation.
LRF Lawyer Advises the State to Surcharge Unprofessional Police Officers
The Legal Resources Foundation NEWS October 2019
5Feature
What's happening with Our Money for Ground Rate?Dear Advisor I would like to find out what is happening with our councils in Zambia. The landlords are made to pay ground rates every month to the council and the money is supposed to be used for services like unblocking sewer lines, water pipes and any other anomaly which relates to the land. However, the Council stopped a long time ago providing such services while us we keep on paying ground rates to the Council. Do you think the Council is stealing money from us indirectly by not providing the services that our money is paid for?Don't we have the right not to pay ground rate as long as the Council do not use our money in a proper and right manner.What should we do? Should we stop paying ground rates or we let the Council continue stealing our money?Yours Sincerely Landlord (Mwanza)
Dear Landland,According to the law every person who has real property in form of a house or State Land is under an obligation to pay ground rates. The Rating Act CAP 192 of the Laws of Zambia, which governs the payment of rates, makes it an obligation to pay rates but does not impose any specific duty on the rating authority to provide services. Rates are paid in order to increase the general revenue of the local authority so that it is able to carry out its activities properly.Failure to pay rates is punishable through the levying of distress. Though I agree with you that it is not in order for the Council to receive rates and not provide any service, no specific services are however tied to the payment of rate. Probably the only pressure you can exert on the council is administrative maybe through your Member of Parliament. This form of pressure is political and not legal.
I want my Jailed Relative to Serve Sentence in Zambia Dear Advisor I have got a relative who is detained in a foreign country over drug trafficking. My relative has been serving this sentence in foreign land for more than 3 years now. I want to find out if at all there is a provision, which allows a transfer of suspects from the Country where the person was arrested to the country of origin. If there is anything what then is the procedure because I want to bring my relative so that he can come and serve the sentence here in Zambia where our family members will be having an opportunity of visiting him regularly.
Your advice on this pressing issue would be highly appreciated. Yours faithfully C. Muleya, Mbala
Dear Muleya, An Offence is usually punishable in a country where it is committed. There is nothing wrong at law with punishing your relative from the country where the crime was committed. Extradition law governs the issue of whether or not your relative can be brought from foreign jurisdiction to face Criminal prosecution in Zambia. Therefore whether or not your relative could have his matter transferred to Zambia would largely depend on the relationship between Zambia and that country where your relative is detained.
Re – Help me get my Terminal BenefitsDear Advisor I write this letter to your office of Authorities LRF there in Lusaka to seek for help, because you are the right people in Zambia. I was working in a company here in Kabwe called Guardali Security Group
stLimited. I started work on 21 September 2008 and I was terminated from
ththis company on 28 February 2014 as a Security Guard, due to problems from the Company.I was only paid leave days and Uniform bond K400.00 kwacha for everything. Now I am still waiting to get a terminal benefits which the Management of Guardali is refusing to pay me up to date. I even went to Labour Offices to complain but nothing was done, I went back to Zanaco to check but nothing was there. My Acc No is 1352129100157 Kabwe Branch. The reason of taking too long is because I was sick and I was in Kabwe General Hospital for two months. When I came out form hospital I stayed three weeks at home and my young brother took me to hospice hospital where I stayed for 30 days. Now I am at home. I would like to thank God our heavenly father because your LRF organization is still there under President of this Republic of Zambia Edgar Chagwa Lung's leadership and his PF Government, I will appreciate if something is done about this company.Yours faithfully Rodwell Chindamba NRC NO 198412/161Kabwe
Dear RodwelRE: TERMINAL BENEFIT
thW e thank you for your letter of 11 October 2015, in connection with the above subject matter.
thWe note that your contract of employment was terminated on 28 February 2014 where upon you were paid outstanding leave days, uniform bond, salary earned and were given due notice of one calendar month. Legally, the company complied with the legal requirements of terminating a contract of employment.Nonetheless, should you have reasons to believe that the termination was precipitated by other factors, you may challenge such a termination at the Industrial Relations Court. As for leave pay, you did not indicate in your letter how many days you had accrued to assist us compute your leave pay.All in all, when a contract of employment is terminated, all the employer has to do is give reasonable notice or pay you a salary in lieu of notice, settle salary arrears, pay outstanding leave days and, as was in your case, uniform bond. You may just wish to ensure that your NAPSA contributions were being remitted.Yours faithfullyLegal Resources Chambers
The LRF
LEGAL ADVISOR
Please note that the LRF will not be held liable for any damages arising from the facts supplied in connection with this advice column and advice given.
Write your letters to: The LRF Legal Advisor,Po Box 35162, Lusaka. Tel. 221263 fax. 221287.
E.mail:[email protected]
October 2019 The Legal Resources Foundation NEWS
FeatureFeature
Delivery (PLEED) offers a ray of hope to
these vulnerable groups.
With financial support from the European
Union and the Federal Republic of
Germany, Deutsche Gesellschaftfür
Internationale Zusammenarbeit (GIZ) and
with technical assistance from the Danish
Institute for Human Rights (DIHR), the
Legal Resources Foundation is being
supported to support the indigents and
vulnerable people to access justice.
PLEED program was launched in 2015 in
Zambia with a prospect of it going up to
the year 2021. PLEED works under two
strategic areas: strengthened legal
empowerment of rights-holders and
access to legal assistance in civil and
criminal justice, and strengthened policy
and institutional frameworks as well as
strengthening coordination amongst
stakeholders.
To further strengthen the provision of
legal aid in Zambia, PLEED programme
supported the Ministry of Justice and
other stakeholders in the development
and approval of a National Legal Aid
Policy, in October, 2018. The policy
establishes a mixed delivery system
involving complementary legal aid service
delivery models based on cooperation
between state and non-state legal aid
service providers. This includes the
establishment of legal desks at various
levels of the justice system. The policy has
further placed the Legal Aid Board (LAB)
as regulator of all paralegal legal aid
services. Further the program is currently
supporting LAB for a possible amendment
of the Legal Aid Act to include its new role
as regulator to be created under the
policy. It is hoped that with this in place,
the regulation of paralegals will be more
efficient.
To address the training needs of
paralegals, PLEED has supported the
establishment and launch of the three-tier
paralegal training scheme by the Technical
E d u c a t i o n , V o c a t i o n a l a n d
Entrepreneurship Training Authority
(TEVETA). This scheme has standardized
all paralegal training in Zambia and
requires accreditation of training
institutions with TEVETA and the
registration/ affiliation of paralegals to
Legal Aid Board.
In a quest to promote access to justice,
efficient, effective and inclusive justice
delivery, PLEED has supported Civil
Society Organisations (CSOs) to establish
Legal Services Units (LSUs) to provide
legal aid at subordinate court level,
e s tab l i shed Pa ra lega l Desks in
correctional facilities and supporting
desks in communities as well as
established a pilot Police Station Paralegal
Services Desk.
The LSUs operate according to quality
standards set by the Legal Aid Board.
Their operations are also supervised by
legal practitioners from the Legal Aid
Board who ensure that professional
standards are fully complied with.
T h e L S U s a re m a n d a te d b y a
Memorandum of Understanding between
the Judic iar y, Legal Aid Board,
Correctional Facilities, the Police Service
and Civ i l Society Organizat ions
implementing the project.
Legal aid services at the Subordinate
Courts are provided by a team of full-time
paralegals affiliated to Civil Society
Organisations and Legal Aid Assistants
attached to the Legal Aid Board. So far Six
(6) LSU desks are in operation in Choma,
Chingola, Kitwe, Ndola, Livingstone and
Lusaka Subordinate Courts. All LSU staff
have complementary profiles, roles and
responsibilities.
Similarly, eight (8) Correctional Facility
Paralegal desks have been established on
Programme for Legal Empowerment and Enhanced Justice Delivery Project To Assist Indigent and vulnerable persons at Court level and ensure greater respect of their legal rights
the Copperbelt Province at Ndola
C o r re c t i o n a l Fa c i l i t y , K a m f i n s a
Correctional Facility and Chingola
Correctional Facility; Lusaka Province at
Lusaka Central Correctional Facility,
Lusaka Remand Facility and in Southern
Province at Mazabuka Correctional
Facility, Choma Central Correctional
Facility and Livingstone Correctional
Facility. These Paralegal desks operate
from Correctional Facilities, providing
legal aid services to inmates on remand or
with appeal cases, bail applications
among other services.
As for community support, Paralegal
service desks have been established in
communities in Lusaka, Copperbelt and
Southern Provinces.
This model is wholly operated by Civil
Society Organisations. These Paralegal
desks provide legal aid services such us
legal advice, legal information and raising
awareness on human rights. Any cases
requiring legal representation, and legal
drafting, among other services are
referred to the Legal Aid Assistants and
Legal Aid Board Counsel.
The community desks are currently
operational in Gwembe, Kitwe, Monze and
Lusaka.
The Legal Resources Foundation NEWS October 2019 October 2019 The Legal Resources Foundation NEWS
During the Official Launch of the Livingstone Legal Services Unit by Minister of Justice Hon Given Lubinda (MP). Looking on is LRF Chairman Mr. Mabvuto Sakala and LAB Director Mr. Anderson Ngulube
1526 7
By Madube Pasi Siyauya
Access to justice remains a major
challenge in Zambia with statistics
estimated at 1,500 lawyers who are
admitted to the bar and Zambia's
population estimated at 15 million people
leaving translating to about one lawyer to
10,000 people.
According to O’Brien Kaaba (2015) factors
that affect access to justice include
“corruption, inadequate personnel, poor
funding, interference by the executive,
high cost of legal services, and lack of
tools and equipment to carry out
entrusted mandates”.
According to the United Nations (2013),
poverty levels are estimated at 62.4
pe rcent among fema le headed
households compared to 60.1 percent for
male headed households, while among
the youth, extreme poverty for those aged
between 0 and 18 years is at 59 percent
compared to 41 percent with youths
above 19 years.
With high poverty levels among the
underprivileged groups, access to justice
to them becomes even more of a
challenge.
However, the Program for Legal
Empowerment and Enhanced Justice
Further, under a pilot model, the PLEED
programme has established a Paralegal
desk at Choma Police Station in the
Southern Province. The Paralegal desk is
operated by the Legal Resources
Foundation (LRF).
LRF Executive Director Androphinah
Bubala says her organization is impressed
with the way the PLEED program is
operating. She said PLEED has brought
together several CSOs and government,
with the sole purpose of helping
indigents.
She stated that the collaboration among
the different stakeholders is enabling a
quicker and smoother process of
providing access to justice to those that
need it. Ms. Bubala said because of PLEED,
inmates are able to access legal services
right there in Detention Facilities.
She said imprisonment and detention is
no longer a stumbling block to accessing
legal aid.
References
Kaaba, O'Brien. (2015). The Challenges of
Accessing Justice in Zambia.
United Nations (2013) Addressing The
Multiple Dimensions of Poverty and
Inequality in Zambia
Chingola Man Suffers Acid Burns Whilst on Duty at KCM
8 Feature
By Madube Pasi Siyauya
A man of Chingola has sued African
Mechanical & Super Lift Limited
(AMSL) and Konkola Copper Mines
(KCM) for damages for personal
injuries allegedly caused by the
negligence of the two companies
resulting in him sustaining severe
acid burns whilst on duty.
According to the Statement of Claim
filed in the Lusaka High Court by his
Advocates , Lega l Resources
Chambers, Sherry Silwimba states
that he was employed by AMSL a
company which was contracted by
KCM to carry out some maintenance
works at the KCM Nchanga Smelter in
Chingola sometime in 2015.
He avers that whilst on duty at KCM
on November, 19, 2015, he was
assigned to replace a valve on a pipe
carrying highly concentrated sulfuric
acid at the KCM Nchanga Acid Plant
in Chingola.
Whilst executing the said task, a
substantial amount of the said acid
was discharged from the pipe which
Silwimba was working on causing
him severe injuries.
He states that due to the said
accident, he sustained severe burns
on his face, head, shoulders, ears,
back, and neck including general
body pain and has since suffered
permanent disability which has made
it difficult for him to continue
working.
He asserts that the aforesaid injuries
were occasioned on him by the
failure by KCM & AMSL to provide
safe working premises for him such
as providing appropriate protective
clothing and taking precautionary
steps to prevent injury to him from
any spillage of highly concentrated
sulfuric acid which was liable to be a
source of danger.
Silwimba is therefore claiming
damages for personal injuries
resulting from the failure by the two
companies to provide him with
appropriate protective clothing
whilst in the course of employment.
The matter is yet to come up for trial
in the Lusaka High Court.
By Madube Pasi Siyauya
A Man of Lusaka's Linda Compound
has, with the help of the Legal
Resources Chambers (LRC), taken
legal action against the state
claiming, among other things,
compensation for personal injuries
sustained after he was severely
beaten by Constable Kabwe a police
officer stationed at Linda Police Post
in Lusaka who was in the company of
two other people.
According to the Statement of Claim
filed in the Lusaka High Court,
Dickson Zulu 33 was on September th11 2017 around 03:25 hours
dragged out of his house and
handcuffed by Kabwe who was in the
company of a Reserve Police Officer
and the complainant only known as
Sydney.
Soon after handcuffing him, the trio
started beating him using fists and
kicks in full view of his family
members before taking him to Linda
Police Post where Kabwe continued
beating him using a metal bar, a shot
baton, and a whip until Zulu lost
consciousness. Zulu avers that after
being beaten, he was thrown into a
holding cell and only released from
custody unconditionally without
charge by the Officer in Charge (OIC)
at Linda Police Post the same day
around 13:00 hours. He states that
immediately after his release, the OIC
ensured that Zulu got a medical
report from Chilanga Police Station
to enable him seek medical attention
which he did at Chilanga (Game)
Clinic. He was later transferred from
Game Clinic to Kafue General
Hospital where he was admitted from th th11 to 15 September, 2017.
According to the medical report
issued by Kafue General Hospital,
Zulu suffered a fractured right leg,
puncture wound below his left knee,
multiple bruises on his left shoulder
and severe general body pains for
which he is seeking compensation
from the state.
Legal Resources Chambers is
c u r r e n t l y a w a i t i n g f u r t h e r
instructions from Zulu to enable it file
an application into Court for an order
for leave to enter judgment in default
of appearance and defence against
the state following its failure to file
any defence.
Police Officer Leaves Lusaka Man with Severe Bodily Injuries
The Legal Resources Foundation NEWS October 2019
Likezo Mung'ambata, Legal Resources FoundationLawyer
Feature 9
Debt Collection is Not A Police ResponsibilityBy Madube Pasi Siyauya
The Legal Resources Foundation
(LRF) has bemoaned a developing
trend by some police officers to act
as Debt Collectors on behalf of
members of the public. LRF Legal
Officer, Mr. Simon Sokontwe, has
told The LRF News that some police
officers have developed the
tendency of engaging in debt
collection, an act which is outside
their mandate. Sokontwe was
commenting on a story in which a
Lusaka resident David Tembo was
arrested and detained at Matero
Police Station in Lusaka for 3 days in
July 2018, for having failed to pay
back the money owed to a Money
Lender on time. When Tembo, with
the help of LRF, sought the
intervention of the Officer in Charge
(OIC) at the said police station over
the matter, the OIC ordered the
arresting officer to release Tembo
from custody unconditionally, and
also advised the Money Lender to
take the case to a civil court for the
recovery of her money. Tembo was
also advised by LRF that he could
sue the state for damages for
unlawful detention. In a similar
matter, another Lusaka resident
Beatrice Niyongira, a Democratic
Republic of Congo national, was on thAugust, 13 2018 arrested for a
second time in a space of seven days
by police officers from Lusaka
Central Police Station following her
failure to pay back the money that
she owed her niece on time. She was threleased on August, 14 2018
following the intervention of LRF
who argued that the matter was
purely civil in nature. Beatrice was
also advised by LRF that she could
sue the state for damages for
unlawful detention. Sokontwe has
since advised members of the public
wishing to recover money from
those who owe them not to use the
police but to do so through civil
means as debt collection is not a
police responsibility.
By Madube Pasi Siyauya
A Lusaka woman who had been
waiting for over five (5) years for the
Supreme Court to deliver judgment in
her case, has just had her case reheard
by the Supreme Court. This is in a
matter in which Ruth Zulu's former
husband has appealed to the Supreme
Court of Zambia against a High Court
judgment which awarded Ruth an
equal share in the said matrimonial
property acquired by Ruth and her
f o r m e r h u s ba n d d u r i n g t h e
subsistence of their 16 years old
marriage. Ruth 41 of Lusaka's Old
Kanyama Township first sought the
assistance of Legal Resources
Foundation (LRF) when a Lusaka Local
Court refused to recognize her
entitlement in the matrimonial
property, namely, three flats situated
in Luangwa Township, A house in
Libala South and a farm.
Although the Local Court had
awarded Ruth financial compensation
of K15,000 together with an equal
share in the household goods
acquired by the couple, she, with the
help of Legal Resources Chambers,
appealed against the said Local Court
decision to the Lusaka Magistrate
Court, which by its judgment of June
17, 2009, awarded Ruth one of the
three flats situated in Luangwa
Township, a share held in a certain
company and a car.
Yet still, being dissatisfied with the said
judgment of the Magistrate Court,
Ruth appealed against the same to the
High Court for Zambia seeking a fair
share in the said matrimonial property.
In delivering her judgment on June 18,
2012, High Court Judge Lady Justice
Bobo-Banda ruled that the three flats
in Luangwa Township should be sold
and the proceeds of the sale shared
equally between the two parties.
However, being dissatisfied with the
said ruling, Ruth's former husband
appealed against the same to the
Supreme Court of Zambia on October
1, 2012 and also obtained an order
staying execution of the same. On
August 14, 2014, the Supreme Court
heard the appeal but failed to deliver
its judgment on time. Instead, the
Court rescheduled the appeal for
rehearing on October 1, 2019 five
years after the matter was first heard
by the Supreme Court. Ruth remains
hopeful that the Court will be able to
deliver its judgment this time, which
she has been waiting for, for over five
years.
Long awaited Supreme Court Judgment turns into a rehearing
October 2019 The Legal Resources Foundation NEWS
Mr. Sokontwe
210 News
What is Intestate Succession?
Intestate Succession is the part of the law
that deals with what happens when a
person dies without leaving a Will or
instructions as to how his property and
problems are to be handled after his death,
or where the deceased has left a Will which
is incomplete or invalid for any reason. In
this situation he is said to have died
intestate because he leaves no testament
or partially intestate because he leaves an
incomplete or partial testament.
Who is an Administrator
When a person dies without leaving a Will,
the law provides guidelines on how the
deceased person's property and problems
are to be handled. All the property and
problems left by the deceased are called
the Estate of the deceased. The Law also
provides guidelines on who can be
appointed, and how such a person can be
appointed at a particular time or particular
circumstances. Such a person is known
generally as a Personal Representative and
in the case of total intestacy such a
Personal Representative is called an
Administrator.
Although a person may be identified and
chosen to be an administrator in
accordance with the law, he does not
become such administrator and has no
powers until he is appointed by the Court
in accordance with the law. The Court
appoints a person as administrator by
giving her or him a document called
Let ter s of Admin is t rat ion . An
administrator therefore gets his powers to
act from the Letters of administration
granted to him by the Court. He has no
powers or rights until the actual grant and
cannot, therefore, perform any functions
until he becomes such administrator, all his
lawful acts he did in respect of the
property of the deceased are as good as if
he had been appointed as administrator at
the time.
How is an Administrator Chosen?
Although the law provides guidelines on
who and how many people can become
administrators, an administrator once
identified must still prove to the Court that
he or she indeed qualifies and is the
rightful person to apply at the time. If
there are others entitled prior to him or her
he must show why they have not applied at
that time. the law follows a particular order
in identifying those who can be
Administrators in such situations. Anyone
with a prior right or superior right must be
cleared-off first before any grant can issue
to anyone else.
In order to arrive at a proper choice of a
person who can apply for a grant on
intestacy the law looks at the person with
the greatest interest in the estate.
The order of priority in the case of total
intestacy is dependant on when the
deceased died and whether Zambian
customary law would apply to such
deceased person. There are two different
systems that are applicable. For those who
died prior to 1989 or those die after that
date but to whom Zambian customary law
does not apply; and the other applies for
those who die after 1989 and to whom
Zambian customary law applies.
(A) For those who died before 1989 or who
die after that date but to whom
Zambian customary law does not apply
priority is as follows:-
(i) The surviving spouse
(ii) The children of the deceased and their
issue
(iii) The parents of the deceased
(iv) The brothers or sisters of the deceased
of the whole blood or their issue.
The above will be entitled where the
deceased left a surviving spouse but if
there was no surviving spouse, after
brothers and sisters of the whole blood
and their issue, or other relations can
apply in the following order.
(i) Brothers and sisters of the deceased of
the half blood and their issue
(ii) Grandparents of the intestate
(iii) Uncles and aunties of the deceased of
the whole blood and their issue
(iv) Uncles and aunties of the deceased of
the half blood and their issue
For those who die after 1989 and to whom
Zambian customary law applies, the order
of priority is as follows:
(i) Surviving spouse(s)
(ii) The child or children of the intestate
(iii) Parents of the intestate
(iv) Dependants
(v) Near relatives (issue, brother, sister,
g r a n d p a r e n t s a n d r e m o t e r
descendants)
Failing all the above, the Administrator –
General can apply irrespective of when the
death occurs or what law applies as long as
the deceased died domiciled in Zambia or
left some estate in Zambia. After the
Administrator – General has been
appointed by the Court he can administer
on behalf of those interested in the estate,
or claim bona vacantia on behalf of the
State if there are no persons interested in
the estate. He can also apply on behalf of
the State if there are no persons interested
in the estate found.
Procedure for Applying
Letters of administration may be obtained
from either the High Court or the Local
Courts. What determines the court to
apply to is the value of the estate. While
the High Court has original and unlimited
jurisdiction to determine an application for
Intestacy or Intestate Succession
To Page 12
The Legal Resources Foundation NEWS October 2019
11News
By Madube Pasi Siyauya
A former judicial worker has taken the
Attorney General to the Industrial
Relations Court following the refusal by the
Judicial Service Commission to reinstate
him into the civil service and to pay him his
salary arrears after he was acquitted by the
High Court of Zambia.
Facts in the matter are that Noel Ngoma a
resident of Lilanda Compound in Lusaka
was employed by the Judicial Service stCommission as a Registry Clerk on 1
February, 2001. In 2008, Ngoma was
charged by his employer with the offence
of failing to account for US$5,000.00
exhibit money, which came into his
possession by vir tue of his said
employment.
Ngoma states that in addition to being
charged with the aforesaid offence, his
employer also instituted criminal
proceedings against him which led to his
arrest and subsequent prosecution before
the Subordinate Court on a charge of theft
by servant of the said exhibit money.
While the said criminal proceedings
against Ngoma were still pending before
the Subordinate Court, the Commission
proceeded to hear and determine
disciplinary proceedings which had been
earlier instituted against Ngoma and
subsequently dismissed him from the civil thservice on 20 January, 2009. Ngoma
argues that the decision by the
Commission to dismiss him from the
service was contrary to the provisions of
the disciplinary code of conduct that was
applicable to him at the material time
which provided that the Commission could
not take any disciplinary action against him
in relation to a matter which was the
subject of criminal proceedings.
Ngoma avers further that although he was
subsequen t l y conv i c ted by the
Subordinate Court in April 2008 and
sentenced to 42 months imprisonment on
the said charge of theft by servant, he later
appealed to the High Court against both thhis conviction and sentence and on 6
February, 2014, Ngoma was acquitted by
the High Court. Following his acquittal on th rd6 February, 2014, Ngoma did, on 23 July
2014, request the Commission to reinstate
him back into the civil service and also pay
him his salary arrears from the time of his
dismissal to the time of his acquittal in line
with the conditions of service applicable to
him at the material time, but to no avail.
stThis development forced him on 31
October, 2016 to take the Commission,
through the Attorney General as Chief
Legal Advisor to the Government of the
Republic of Zambia, to the High Court
Industrial Relations Division seeking
among other things an order for
reinstatement and payment of salary
arrears due to him from the time of his thwrongful dismissal on 20 January 2009 to
date. In response, the Attorney General
argues that Ngoma should not be granted
the reliefs he is seeking because his
acquittal does not entail automatic
reinstatement into the civil service.
Trial has since been concluded and the
parties have filed their respective written
submissions and now await delivery of
judgment by the Court. Ngoma is being
represented by Legal Resources Chambers
Lawyer, Likezo Mung'ambata.
October 2019 The Legal Resources Foundation NEWS
Dismissed Judicial Worker Seeks Reinstatement after High Court Acquittal
By Madube Pasi Siyauya
Two ex-prisoners will soon have their appeal
heard by the Supreme Court following the
dismissal of their petition by the High Court
on April 29, 2016.
The Petitioners who at the material time
were prisoners at Lusaka Central Prison had
petitioned the High Court seeking, among
other things, a declaration that the decision
by the State to prevent them from accessing
their antiretroviral drugs and collecting the
same on their behalf without first subjecting
them to medical examinations threatened
their right to life and also violated their right
to adequate medical and health facilities.
The Petitioners had argued that the
conditions of their detention, in particular
the inadequate food they received and
conditions of severe overcrowding, poor
v e n t i l a t i o n a n d s a n i t a t i o n a r e
unconstitutional and a violation of their
right to life and freedom from torture and
inhuman and degrading treatment as
stipulated under Article 12 (1) and Article
15 of the Constitution of the Republic of
Zambia, respectively.
In their petition filed before the High Court,
the Petitioners prayed in part that: “It may
be determined and declared that the
Respondent's (the State) decision to feed
your petitioners with thick porridge made
from rotten maize, rotten beans and dried
anchovies with foreign materials is
inconsistent with the Constitution of
Zambia, the International Covenant on
Economic, Social and Cultural Rights and
Standard Minimum Rules for the treatment
of Prisoners in that it threatens violation of
the Petitioners fundamental right to life
under Article 12 of the Constitution of
Zambia.”
The said petition was aimed at ensuring that
the rule of law and humane treatment of
detainees are upheld. Although the High
Supreme Court To Hear Long Awaited Appeal Court found the Petitioners' evidence
“overwhelming” and confirmed that the
conditions in respect of which the
Petitioners were complaining constitute
inhuman and degrading treatment within
the meaning of Article 15 of the
Constitution, the Court nevertheless did by th its judgment dated 29 of April 2016 decline
to grant the Petitioners any relief, holding
that their rights as prayed in the petition
were unen fo rceab le aga ins t the
Respondent (the State).
The Petitioners being dissatisfied with the thsaid judgment of the High Court did, on 30
May 2016, file an Appeal against the same
advancing three grounds of appeal, namely:
The first ground is that the trial Court
misdirected itself in law and in fact when it
found that although the claims relating to
lack of balanced diet were proved, the same
were not justiciable under Article 112 (d) of
the constitution.
The second ground is that the trial Court
misdirected itself in law and in fact when it
found that although the Appellants had
proved their claim of degrading and
inhuman treatment, the same were not
justiciable under Article 112 (d) of the
constitution.
The third and final ground is that the trial
Court misdirected itself in law and in fact
when it found that although the state has a
duty to provide adequate medical care and
food to prisoners in general, it has no
obligation to provide a special diet to
particular patients such as HIV+ prisoners,
to assist them in their recovery.
The appeal is expected to come up for
hearing on December 3, 2019 before the
Supreme Court of Zambia.
The Appellants are being represented by
Lawyer Katindo Mwale holding brief for
Legal Resources Chambers.
12 Feature
The Legal Resources Foundation of Zambia is a non-profit making Foundation, providing legal aid, promoting human rights and litigating in the public interest. It
functions in areas which directly affect the disadvantaged sectors of society in relation to violations of their fundamental rights and the enhancement of justice
Views expressed in this publication do
not necessarily represent those of the
Legal Resources Foundation (LRF) in
Zambia, but those of the particular
authors.
The Legal Resources Foundation
NEWS is published by the LRF
Chairman:
With support from
Mabvuto Sakala
Androphinah
Bubala
Executive Director:
16th Floor INDECO House, Cairo Road,
Lusaka - Zambia.
P. O. Box 35162
Tel: 0211 221263,
Fax:0211 221287
www.lrf.org.zm
facebook page: Legal Resources
Foundation- Zambia
letters of administration, the local courts
on the other hand have limited
jurisdiction.
The Local Court's jurisdiction in this regard
is limited to estates whose value is not
above what they are authorized to
adjudicate upon. It is therefore advisable
to apply to the High Court in a case where
the value of the estate is high and where
the estate includes real property i.e. land or
a house.
As the administrator is not a person
chosen by the deceased but is chosen as
we have seen, because he meets certain
qualifications, it is often necessary for this
person to provide some guarantee or
assurance that he will perform his duties as
administrator according to the law. He is
sometimes, therefore, required to provide
security for this purpose.
When there is a minor interested in an
estate, that is a person below the age of 18
years or there is a life interest in an estate,
the law prescribes or requires that there
must be at least two administrators unless
the one chosen is the Administrator –
General.
An administrator is appointed because he
meets certain qualifications. It is, however,
not everyone who meets the legal
qualifications who gets appointed, as the
court takes into account the general
character of a person before such person is
appointed. As the administrator is
appointed not out of trust, the law requires
that he provides some assurance or
guarantee that he will indeed perform his
duties according to the law. The law,
therefore, requires the Administrator to
commit himself to the performance of his
duties.
Duties of an Administrator
An administrator is personally liable for
any negligence in handling an estate or
any mismanagement or misapplication of
the assets of an estate. He is liable for any
loss to the estate and is liable for any
waste.
The responsibility placed upon an
administrator is a heavy one as the entire
property or assets of a deceased are in his
deceased.
He cannot be compelled to
distribute any asset to anyone
before the end of one year but he
may choose to do so at his own
discretion. Any debts that carry
interest must be paid with
interest. The administrator also
has a duty to perform all
enforceable contracts of the
deceased.
When the estate is such that it is
capable of paying out all the
debts owed by the deceased, it is
said to be solvent and the
administrator must pay all debts.
When it is incapable of paying
out all the debts owed by the
deceased, it is said to be
insolvent and the administrator
in this case has a duty to observe
the order of payment which has
been prescribed by law.
If the personal representative
pays out a debt of a lower degree
knowing that there is a debt of
higher degree, this amounts to
To be continued
From Page 10
Intestacy or Intestate Succession
EUROPEAN UNION
