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Vedanta opposes KCM’s application

VEDANTA Resources Holding Limited has asked the Lusaka High Court to dismiss an application by ZCCM-IH for leave to appeal against its decision to stay the winding up proceedings of Konkola Copper Mines for being incompetently before court.

This is in a matter in which ZCCH-IH has petitioned KCM for liquidation seeking an order that it be wound up for evading tax.

In skeleton arguments in opposition to skeleton arguments in support of application for leave to appeal, the contributor of KCM stated that
on August 27, 2019 justice Anessi Banda-Bobo delivered an extempore ruling staying the proceedings before her pending determination of its appeal to the Court of Appeal challenging the decision by the court to refuse to refer parties to arbitration.

On September 2, 2019, ZCCM-IH filed ex parte summons for leave to appeal and skeleton arguments to appeal the impromptu ruling to stay the proceedings.

ZCCM-IH in its ex parte summons for leave to appeal against the extempore ruling dated August 27, 2019, argued that the court erred in facts and in law when it granted the stay of the winding up proceedings, pending the determination of the appeal despite making a finding that the contributor’s appeal lacked any chances of success.

The petitioner further argued that Justice Banda-Bobo erred in fact and in law in the manner in which she exercised her discretion to grant the stay of proceedings pending appeal on the ground of novelty.
But Vedanta stated that Order X Rule 4 of the Court of Appeal Rules bestows the court the jurisdiction to make an order to grant or deny leave to appeal to the Court of Appeal.

The contributor said that it was indisputable that Justice Banda-Bobo has the discretion to grant or not grant leave to appeal adding “we however, submit that this court is limited in certain instances in which it can exercise this discretion, and the case at hand is one such case where this honourable court cannot grant leave to appeal,” it said.

Vedanta said the case was not fit for the granting of leave to appeal, as a party to the proceedings has no right to take any further steps in the action that was unreservedly stayed in the ruling of August 7.

Vedanta argued that when proceedings have been stayed without any reservations as was the case of KCM, no further action or steps can be taken in the proceedings until the happening of the event for which the proceedings were stayed, in this case the hearing and determination of the appeal.

The contributor contended that the appeal having prospects of success is a key consideration from the grant of a stay, therefore the prospects of success is not the only consideration that the court is entitled to look at before making a grant of stay.

Vedanta indicated that more was required to be advanced to persuade the court below or the court that it was desirable, necessary and just to stay a judgment pending appeal.

“The grant of a stay of proceedings was an entirely discretionary remedy and notwithstanding the court finding that the contributor (Vedanta)’s ground of appeal lacked prospects of success, which it submitted in any event was not correct, the
court found that the grounds raised novel issues warranting the determination by the supreme court (Court of Appeal),” the contributor of KCM said.

“It is our view that this point sufficed as being ‘more’ which entitled the court to the exercise of its discretion which we submit was properly and judiciously exercised in the extempore ruling of
2nd August 2019″.

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