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Makebi Zulu Advocates can represent Milingo, rules magistrate Kaoma

LUSAKA magistrate Felix Kaoma on Monday refused to disqualify Makebi Zulu Advocates from representing KCM provisional liquidator Milingo Lugu in a matter where he is facing charges of theft and money laundering.

It is alleged that on dates unknown but between May 22, 2019 and September 28, 2021, Lungu being a provisional liquidator of Konkola Copper Mines (KCM) embezzled K4,400,000 belonging to the mine.

In the second count, Lungu is on the same dates alleged to have transferred the money in question to his account while knowing that it was proceeds of crime.

State advocate Sipholiano Phiri had asked the court to order the recusal of Makwebi Zulu Advocates as there was a possible conflict because the firm also represented KCM Plc (in liquidation) before the High Court under cause number 2019/HP/0761 which proceedings have been suspended.

Phiri said Makebi appeared for KCM and the same firm was representing the accused and was acting against KCM.

“The conduct by Makebi Zulu Advocates was strongly condemned by the Supreme Court as it was illegal conduct by a practitioner. By Makebi Zulu Advocates appearing for the accused, it will prejudice the case for the state as the firm would have acquired the briefs to use against the state,” submitted Phiri. “There is a likely compromise as the firm will not exercise its independence in the matter. The fact that Makebi Zulu Advocates represented KCM and today they are against the mine, will prejudice the administration of justice. It is our prayer that the court orders the law firm to recuse itself.”

Chief state advocate Gamaliel Zimba said the proceedings before the subordinate court were in relation to how Lungu managed the affairs of KCM and the state had brought the proceedings on behalf of the people to prosecute him for the alleged breaches.

“KCM is a witness, the scenario before you is that in the liquidation proceedings, Makebi Zulu Advocates are advancing the cause of KCM. In the proceedings before you, the law firm is sitting at odds with the interests of KCM by representing the accused,” submitted Zimba. “The law firm cannot maintain professional independence on the administrators of justice. Makebi Zulu Advocates cannot serve two clients whose interests are connected and we beseech the court to order its recusal from the proceedings.”

Lungu’s lawyer Moses Chitambala argued that prior to the filing of the notice of appointment on May 22, 2019, the High Court appointed Lungu as the provisional liquidator of KCM and according to the corporate insolvency Act he continued to act on behalf of KCM.

He said the powers conferred on Lungu included that of appointing advocates to act on his behalf as KCM (in liquidation).

“It is misleading for the state to present the notice of appointment of Makebi Zulu Advocates as advocates of KCM without explaining to the court that the appointment was made by Lungu,” argued Chitambala. “There is no evidence under the proceedings before the High Court suggesting that the KCM board existing prior to the appointment of Lungu as the provisional liquidator appointed Makebi Zulu Advocates to act on behalf of KCM. There is no conflict of interest for the law firm to represent Lungu in both courts.”

He further submitted that no allegations had been leveled against Lungu on any breach of the corporate insolvency Act in relation to the affairs of KCM, and that the state had failed to demonstrate any circumstances warranting the restriction of Lungu’s right to be represented by lawyers of his choice State Counsel Sakwiba Sikota argued that it was misleading to the court for the state to say that Makebi Zulu Advocates acted for KCM when they never did.

He said it was impossible for the law firm to act for an entity that had no legs to stand on after it was placed under liquidation.

“KCM is represented by Lungu. The state is saying the advocates cannot represent him because they represent him in the High Court is a tautological argument. The matter before the High Court is KCM PLC (in liquidation), Makebi is not acting for ZCCM-IH but KCM PLC in liquidation and the provisional liquidator being Lungu,” Sikota said.

“Makebi Zulu Advocates has been consistently representing Lungu in the High Court and subordinate court. The state is trying to take away the constitutional right of lawyer of choice from the accused and the state is very casual about wanting to take away his rights.”

He said the application was a mere afterthought to delay the case as the arrest of Lungu was publicised and that from inception the lawyers were Makebi Zulu and Jonas Zimba who were from the same law firm but the state did not raise issues.

“Is the state going to gauge the accused from giving the said information to other lawyers? They have not stated what and why the information will be prejudicial to them. The information which is in favour of the accused is being prevented from being heard by the court, the duty of the state is to ensure all relevant information is brought before court whether or not it damages their case,” said Sikota. “It is alarming for the state to go to court and say favourable evidence in favour of the accused against the state should never see the light of day. It is not possible for a corporate entity to be a witness; how will it be sworn in? It is misleading to say KCM is a witness. The application should be thrown out and trial commences and delaying tactics by the state should not be entertained.”

And Zulu said the application was an attempt to bring the name of the law firm into disrepute as it was ethical in its approach, professional and independent.

He said the state had referred to matters before both courts and no connection had been shown about the relationship between the two cases.

Zulu said his law firm had never represented KCM and did not represent the mine.

“We acted for the accused as provisional liquidator, we continue to act for him as provisional liquidator. To prove conflict, I was hoping the state would show Messrs Makebi Zulu Advocates are likely to be witnesses in this transaction. Nothing has been shown to suggest that we had a brief or advised in relation to the matter before you that is capable of impeding the case,” submitted Zulu. “The application is a trap as it goes to the root of the case and the state wants to distinguish Lungu as provisional liquidator from KCM. We are arguing that he (Lungu) is KCM and can’t steal from himself. If the court is put into distinguishing the legal capacity of the accused from KCM he will be prejudiced.”

In his ruling, magistrate Kaoma said by the notice of appointment Makebi Zulu Advocates were appointed as lawyers for KCM and there had been an attempt to depart from the notice by the defence.

He said the matter involved ZCCM-IH and KCM and had nothing to do with Lungu in the subordinate court, though the matter involved KCM.

“It would have made sense if KCM had sued Lungu for the K4 million in the High Court. Since there is no nexus of the two cases, I find that Makebi Zulu Advocates is not conflicted in this matter and the application is dismissed,” said magistrate Kaoma.

Meanwhile, Lloyd Musonda, an inspector of companies at Patents and Companies Registration Agency (PACRA) told the court that on October 14, 2021, he was approached by Drug Enforcement Commission officers who wanted to know whether Lungu was duly registered as an insolvency practitioner.

He said the Commission also inquired on whether Mwembazi Financial Services Limited and Muya and Company were duly registered.

Musonda said he logged into the E-PACRA system to check whether Milingo Lungu was appearing on the list of insolvency practitioners approved by the Registrar of Companies and he discovered that Lungu was accredited under certificate number 820190038.

He testified that Lungu was accredited in 2019 and later renewed his certificate in 2020 and 2021, and that the two companies were both registered.

“Muya and Company was registered in 2007 while Mwembazi Financial Services was registered in 2008. On Lungu’s file, there was his application for accreditation, receipts for payments and certificates for accreditation,” said Musonda.

“The directors and shareholders for Mwembazi Financial Services are Lunte Mbewe Buumba, Simweemba Buumba. The business name Muya and Company is owned by Zacharia Muya.”

Trial continued yesterday.

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