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3 Supreme Court Judges reported to the JCC

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A Lusaka resident has petitioned the Judicial Complaints Commission against the conduct of three (3) Supreme Court Judges – Justice Evans Hamaundu, Michael Musonda and Nigel Mutuna to the Judicial Complaints Commission in the manner they handled the appeal cases in Savenda versus Stanbic Bank.

 

Mr. Gregory Chifire who is also Southern African Network Against Corruption Executive Director has written to the Judicial Complaints Commission to review the Judgement against Savenda where the company has been ordered to pay Stanbic Bank USD1.3 million in 2016.

I draw your attention to the above case with a view to persuade you to explore whether the above named Justices exercised  authority in a just manner which promotes accountability, serves the interest of justice and development of jurisprudence in accordance with article 118(2) of the Constitution of Zambia.

Below is the letter that Mr. Chifire has written to the Judicial Services Commission;

 

Dear Sir,

 

Conduct of Supreme Court Judges in Savenda Vs Stanbic Bank – SCZ JUDGMENT NO.10 OF 2018

In accordance with the duties deposited in me as a Citizens of the Republic of Zambia under article 2 of the Republican Constitution, which states and we quote;

 

Article 2;

Every person has a duty to-

Defend this Constitution; and

Resist or prevent a person from overthrowing, suspending or illegally abrogating this Constitution

 

I do hereby lodge an official complaint to your office on the conduct of the Judges mentioned below. The names of the Justices being;

Justice Evans Hamaundu

Justice Nigel Mutuna

Justice Michael Musonda

 

The complaint arises from the casual attitude with which the mentioned Judges conducted themselves With regards to the handling of an appeal of the Judgment involving Savenda and Stanbic Bank.

Savenda a Management Services Limited v. Stanbic Zambia Limited

I have taken time to read through the Judgment delivered in September 2016 by trial Judge, Justin Chashi of the Commercial Division of the High Court, who overturned the arbitrator’s ruling ordering Savenda to pay Stanbic US$ 1.36 million but instead awarded damages to Savenda for losing significant contracts after being reported by Stanbic Bank to the Credit Reference Bureau for defaulting on instalments. It is clear that the Supreme Court, whether by design or not, omitted very crucial evidence that formed the basis for the award of damages.

As you may note, if you decided to take time to review this matter, it was never in dispute between parties that the apparent defaulting to service the loan was caused as a result of the failure of the Stanbic Bank’s own system. The disputed evidence that was overlooked include the facts that Savenda was servicing the loan as scheduled, but the bank’s system could not capture it due to internal system failure to which Stanbic wrote a letter to Savenda about rectifying the problem.

 

Without due care and proper Investigation, the Bank reported Savenda to the Credit Reference Bureau (CRB) as a deliquescent borrower. Savenda argued that as a result of this action, they lost out on revenue and profits, they lost out on business as they could not borrow anywhere in Zambia to finance their projects. Savenda’s case was that even though the bank conceded the error, it negligently listed the company with the credit agency. That listing resulted in several missed funding opportunities and harm to the company’s reputation.

 

After hearing detailed financial evidence from both sides, the trial court found the problem lay with a bank glitch that led to the account defaulting and then being classified delinquent. While the Bank continued to deny any problem on its side, the trial court quoted a Stanbic Bank’s own letter stating that Savenda’s debit had defaulted to an internal suspense account and this “anomaly” had since been rectified.

 

In my humble view, which is shared by many other citizens of the Republic, the trial court was right to state that if the bank had properly investigated, it would have found the apparent default was caused by a failure of its own system rather than by Savenda’s non-payment. The trial found the bank “culpably careless” for reporting the client without properly investigating.

 

It is inevitably clear that the CRB uses the listing as a blacklisting mechanism, with lenders not being keen to advance monies to reported companies. In this case, the bank’s negligent listing had an adverse impact on the company, with funding for important projects being declined.

 

Finding the company had proved its case and was entitled to relief plus legal costs, the trial court referred the matter to the deputy registrar for assessment of the damages due. After assessment, Savenda was awarded K192.5 million in costs and damages. The Bank went to the court of appeal which granted Stanbic Bank Zambia leave to appeal against the judgment that ordered the payment of K192.5 million to Savenda Management Services in damages after registering it as a bad debtor with the Credit Reference Bureau.

 

In August 2017 Stanbic Bank obtained a Supreme Court order for Savenda Management Services Limited to pay the arbitration amount and refused an application by Savenda to pay the amount in installments. The Supreme Court also ordered Savenda Management Services Limited to pay Stanbic Bank costs incurred in the Supreme Court and the High Court. From the adduced evidence at the trial court, it is clear that the Bank was at fault.

 

Following a huge public discontent that this Judgment raised, I seek your indulgence to ascertain whether the conduct of the three Judges amounts to incompetence and gross misconduct and I pray that necessary action be taken in accordance with Article 143 of the Constitution which we quote;

Article 143;

A Judge shall be removed from office on the following grounds:

a mental or physical disability that makes the Judge incapable of performing judicial functions;

incompetence gross misconduct; or bankruptcy

I am alive to the fact the fact that the Constitution has provided sufficient provisions to deal with this matter so as to restore confidence in the Constitutional Court.

 

Sincerely Yours

 

Gregory Chifire

 

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One Response to 3 Supreme Court Judges reported to the JCC

  1. You borrow money, fail to pay back and start playing monkey tricks. You chew the funds alone and now you want us to help. Please pay back. If you had paid back in full the bank computer glitch you are talking about wouldn’t arise. The fact is you have not paid in full.

    verdict
    May 26, 2018 at 12:41 pm
    Reply

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