NDC leader Chishimba Kambwili and his lawyers have indicated that soliciting for bribes is not included in functions of a judicial officer as magistrate David Simusamba ‘did’, as it is a crime and the latter cannot hide under the wing of immunity.
In this matter, Kambwili and his lawyers Cheelo Mwiinga and Christopher Mundia have sued principal resident magistrate Simusamba for defamation for alleging that they attempted to bribe him in order to deliver judgment in favour of the NDC leader in a matter where he is facing charges of forgery, uttering a false document and giving false information to public Officer.
The trio is seeking exemplary and or punitive damages for defamation of character, compensatory damages, damages for mental anguish and strain arising from the false, malicious and defamatory statements.
They also want a public retraction of the false and malicious allegations contained in a letter to the Chief Justice and an apology to them to their satisfaction in respect of all the defamatory utterances attributed to magistrate Simusamba.
In their statement of claim, Kambwili disclosed that magistrate Simusamaba was on a deliberate path to personally destroy him, especially that he had completely refused to pay him K360,000 which he demanded.
Kambwili and his lawyers said they would provide evidence and proof that magistrate Simusamaba authored a letter to the Chief Justice between December 18, 2019 and January 22, 2020 in which he maliciously made false allegations against them in order to escape sanction from the Chief Justice, by falsely in turn accusing the complainants of corruption after Kambwili complained against him.
Magistrate Simusamba had asked the Lusaka High Court to dismiss the action against him on point of law for irregularities on grounds that he could not be sued by Kambwili and his lawyers for executing his duty because he enjoys judicial immunity.
In his application to have the matter dismissed on point of law, magistrate Simusamba said he had been sued over issues which arose in a strictly private and confidential correspondence to the Chief Justice concerning issues which arose in his performance as an adjudicator in a matter between the people versus Chishimba Kambwili.
Magistrate Simusamba said no action could lie against a judicial officer (Honorable magistrates included inter alia) in his or her capacity for acts done or words spoken by an adjudicator in the honest exercise of judicial office.
“My correspondence to the honorable Chief Justice in response to a complaint by Chishimba Kambwili was done in my exercise of judicial functions and in strict confidence,” magistrate Simusamba said.
He said the action by Kambwili and his lawyers was misconceived at law as he enjoys judicial immunity.
Magistrate Simusamba said he was not the right party to be sued as he was a government employee and the right party ought to have been the Attorney General.
“The plaintiffs have also not indicated a residential address on the writ of summons and have also not indicated their respective postal and electronic addresses which are irregularities,” said magistrate Simusamba.
But Kambwili, Mwiinga and Mundia in their joint affidavit in opposition to the defendant’s affidavit in support of summons for an order to dismiss an action on a point of law or irregularity said that the defendant cannot hide under the wings of immunity.
They said that it was not true that magistrate Simusamba had been sued on issues which arose in a strictly private and confidential correspondence to Chief Justice Irene Mambilima, as the said letter was in public domain and that justice Mambilima directed that the matter of alleged corruption be reported to the Anti-Corruption Commission who were availed the same letter and other investigative agencies.
“Soliciting for bribes does not include functions of a judicial officer as the defendant (magistrate Simusamba) did, as the same constitutes a crime and the defendant cannot hide under the wing of immunity,” the trio said.
The three argued that magistrate Simusamba does not in any way enjoy judicial immunity for being allegedly corrupt because corruption was not one of the functions of a judicial officer.
“The defendant only responded to the Chief Justice after it was made known to him that there was a complaint against him,” said the trio.
“There is no multiplicity of the cases as the matter is before other bodies which are not courts of law such as the Anti-Corruption Commission.”