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KCM liquidator opposes Vedanta’s application to join liquidation

 

KONKOLA Copper Mines provisional liquidator has opposed Vedanta Resources’ application to join the winding up proceedings in a matter the mine has been placed under provisional liquidation by government. The appointed provisional liquidator Milingo Lungu appointed Bonaventure Mutale as lead lawyer while Vedanta Resources is represented by Hermein Uys in the winding-up proceedings.

Vedanta had applied to join the proceedings of winding up KCM, as second intended respondent because it was the majority shareholder in the mining company holding 79.4 per cent shares.

 

Vedanta, through Uys, indicated intention to oppose the appointment of Lungu as provisional liquidator of KCM at the inter-partes hearing.

 

“The intended second respondent will be prevented from making the submissions on the appointment of provisional liquidator and or making other applications such as whether any claim by the petitioner should be by way of arbitration pursuant to the shareholders’ agreement in the matter as it will only be entitled to appear at the hearing to support or oppose the petition to make the winding up order final as opposed to being in a position to intervene and protect its right as majority shareholder in essentially a shareholder dispute in circumstances where the petitioner has flouted the agreed dispute resolution process which Vedanta requires the petitioner to follow,” Uys said.

 

Uys insisted that to enable Vedanta to make submissions on the appointment of Milingo as well as any other application in relation to the petition, it needs to be joined to the proceedings as a respondent.

 

Vedanta argues that KCM has not disputed the reasons advanced by the second intended respondent in support of its application to be joined to the proceedings.

 

“The respondent has failed to demonstrate the basis on which the second intended respondent should not be joined to these proceedings,” said Vedanta.

But Mutale has asked the Lusaka High Court to throw out the ex-parte application for joinder by Vedanta for lack of merit.

 

In an affidavit in opposition to summons for an order for joinder of a party to the proceedings, Mutale said the order sought by Vedanta was not provided for in the company’s winding up rules.

 

He submitted that in a petition to wind up a company, there was no provision for joinder of a party at any stage of proceedings.

 

Mutale stated that a person who wished to be heard either to support or oppose the petition was only required to file the prescribed notice into court.

 

“On the basis of the forgoing, that the order sought by the intended second respondent is not provided for by the companies (winding up) rules of 2004 and that there is no lacuna there in relating to the hearing of the interested persons,” Mutale stated.

 

“We accordingly pray that the application be dismissed with costs.”

 

When the matter came up for hearing before High Court Judge Annessie Banda-Bobo, Mutale raised a preliminary issue on whether Vedanta was right to file documents without leave of court and raising new issues that it did not raise in its application for joinder.

 

On June 1, 2019, Vedanta in its statement disclosed its intentions to take the Zambian government to The Hague for arbitration over the provisional liquidation of its company.

 

The matter comes up on June 11.

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