LUSAKA High Court judge Mwape Bowa has granted deported GemCanton Investments Holding co-chief executive officer Eliezer Nefussy leave to commence judicial review proceedings challenging home affairs minister Stephen Kampyongo’s decision to deport him to Namibia without being accorded an opportunity to be heard.
Judge Bowa granted Neffusy leave to challenge the decision, saying the applicant had an arguable case. He, however, refused to stay the decision of the minister to deport Nefussy because there was nothing to stay.
“However, I am not persuaded to agree with counsel for the applicant that the grant of leave must operate as a stay in this case for the simple reason that there is nothing to stay. The decision has been implemented. The applicant was deported in November 2017 and is not presently in Zambia; there is no question that under Order 53 rule 3 (10), the court has power where leave is granted and the relief sought is an order of prohibition or centiorari, to order that the leave operate as a stay to which the application relates pending the determination of the matter,”
judge Bowa said.
He added that the court had jurisdiction where appropriate to stay the decision making process but only if it had not yet been completed.
Judge Bowa said it was academic to apply for a stay in circumstances where a decision frowned upon had already been implemented.
“Counsel is in essence inviting the court to make an order akin to a mandatory injunction whose applicable principles are quite different from those of a stay in judicial review proceedings. For the above reasons, I would decline to grant the prayer that the grant of leave also operate as a stay,” said judge Bowa.
Nefussy, a Namibian of residential address Room six GemCanton Mining Workers quarters, Pilala area, Emerald restricted area in Lufwanyama district, has sued the Attorney General and is seeking an order quashing the decision of the minister to deport him on November 28, which he said did not follow the well-established procedures and rules of natural justice.
He stated that the decision of the minister to deport him was illegal, unjust, unconstitutional and unreasonable.
Nefussy stated that the home affairs minister’s refusal to rescind his decision of deporting him even when he was informed that his action was contrary to the rules of natural justice, was illegal and unreasonable.
Nefussy added that he was cleared of any wrongdoing by the Inspector General of Police but his business associates continued threatening him with possible consequences, including deportation after a shareholder dispute which was private in nature and did not concern the respondent.