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Vedanta is abusing the court process, says ZCCM-IH

ZCCM-IH has charged that the reason Vedanta Resources Holdings limited is now questioning the powers of KCM (in liquidation) provisional liquidator Milingo Lungu is because it has had no joy before other judges to have his powers discharged.

ZCCM-IH stated that Vedanta is abusing the court process as it has made its application with full knowledge that the suspension of the winding up proceedings of Konkola Copper Mines has not been lifted.

This is in a matter where ZCCM-IH has petitioned KCM for liquidation, seeking an order that it be wound up for engaging in tax evasion and being managed in a manner detrimental to the interests of government, among other reasons.

Vedanta Resources Holdings limited asked the Lusaka High Court to give guidance over the powers bestowed on Lungu.

Vedanta, as the majority shareholder of KCM, argued that the powers of the provisional liquidator in the ex-parte order of appointment do not include the disposal of substantially all of the business and assets of KCM for nil consideration.

According to the contributor’s combined skeleton arguments and list of authorities in opposition to the skeleton arguments and list of authorities in support of notices of motion to raise preliminary issues, Vedanta said it is dangerous for ZCCM-IH and Lungu to suggest that the court does not have supervisory authority over him as provisional liquidator of KCM (in liquidation) because of an order staying proceedings.

Vedanta said its application does not by any stretch of imagination deal with the main proceedings before court.

It stated that the application for directions seeks the court’s guidance as to whether Lungu is procedurally entitled to reorganise a company, which is the subject of winding up proceedings and an order for stay pending arbitration.

But in its skeleton arguments in reply to the contributor’s skeleton arguments in opposition to motion to raise preliminary issues, ZCCM-IH said that Vedanta did not request for the winding up proceedings to be stayed without reservation neither did the Court of Appeal in its judgment make an order to that effect.

ZCCM-IH said the application by Vedanta seeking the court’s directions with regards to Lungu would change the status quo because the proceedings were frozen by the Court of Appeal and determining the contributor’s application, the High Court would be assuming authority it does not have.

“By determining the contributor’s summons for directions on the status of the provisional liquidator and his powers, the court would be effectively reconsidering its ex-parte order dated May 21, 2019 appointing the provisional liquidator,” ZCCM-IH said.

“The issue of the provisional liquidator cannot be severed from the rest of the winding up proceedings, whilst the stay has not been discharged. We submit that the contributor’s application cannot be deemed to be merely procedural.”

ZCCM-IH argued that Vedanta did not seek a stay of proceedings with reservations in relation to Lungu neither was the same granted by the Court of Appeal and the court should not allow the contributor to enter through the window, when the door has been shut.

It said the stay was granted on the basis of the dispute being referred to arbitration and there has been no change in circumstances in regards to the arbitration before the South African Courts warranting the revival and continuation of the winding up proceedings.

“My lady we reiterate our prayer for the motion to succeed with costs payable forthwith,” prayed ZCCM-IH.

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