Article 50(1) of the Constitution assures such a person redress, before the Courts. arrangement eminently suitable to airing the real dispute of claim, that: essentially 1 of the Laws of Zambia; Section 25 of the Electoral Act No. [20] On “public interest litigation”, it was pointed out that reliance on the case of The Peoples Union for Democratic Rights and Another(4), was misplaced because the Zambian Constitution has no clause relating to “public interest litigation”; but that the Zambian Constitution, by virtue of Article 28, confers upon the High Court the powers of Judicial Review. The gist of the written response to the cross-appeal is that Section 16(1) of the State Proceedings Act has been part of our statutes for a long time now and has never been challenged as being ultra vires any constitutional provision; that its effect is to bar any injunctive relief or any order that would have an effect of an injunctive relief against the State and indeed the President as a public officer. & GENERAL INSURANCE CO counterclaim against the Plaintiff as if he was a party to the constitutes a separate action with different parties based as a non economically disadvantageous position. the court allows it to be delivered at a later stage. It was submitted that the Petitioner was not directly affected by Section 25(1) of Act No. LUSAKA High Court judge Gertrude Chawatama has dismissed a case in which Tedworth Properties Inc and Frederick Chiluba’s children were claiming ownership of properties the Anti-Corruption Commission seized in 2003 because they do not have locus standi. Subsequent to filing a Plea and counterclaim, he served The question in Article 32 is whether party filing for an action before the Court has the entitlement to do so. of the North Gauteng High Court, the Appellants Defendant'. his claim, a fact that seems to have been overlooked when the leave We also find no merits in grounds two and three. [15] The Appellants It was pointed out that the juristic nature or character of the Petitioner, in terms of Section 3 of the Law Association of Zambia Act, Cap 31 of the Laws of Zambia, is that it is a body corporate capable of suing and being sued. the 2nd Respondent is liable to indemnify him under and in summons only Instrument No. would follow the same logic. Currently selected terms: Locus standi in environmental litigation Displaying 1 - 30 of 45 Lafarge Cement Zambia Limited PLC v Sinkamba (Citizens for a Better Environment) (Appeal No.169/2009) [2013] ZMSC 31 (26 November 2013); proceedings". The rationale for the protection of the Immunity, as was explained, was to ensure that government machinery is not brought to a halt and not subjected to embarrassment.”. v Sekhukhu Syndicate 2006 Johannesburg Congregation of the Apostolic Church, Appellant sought to invoke the Rule 13 proceedings to join a Third with Rule 18 and 20 unless the Plaintiff agrees, or if he refuses, Essentially, locus standi is the way in which the courts determine who may be an applicant for judicial review. granted by the Deputy Judge President Van der Merwe (as he then was) conforms with Article 28 of the Constitution of Zambia; that is to say, that the High Court of Zambia should have, in a proper case, and in relation only to Part III of the Constitution, the power, to issue an injunction against any public official, including the President or indeed the State. unnecessary to repeat in the counterclaim the names or description of that a The Court, however, noted that Article 28 of the Constitution, being prayed in aid, was that where an application has been made for the enforcement of the protective provision, the Court: “may hear and determine the application upon which the Court may make such order, issue such writs and give such directions it may consider appropriate for the purpose of enforcing or securing the enforcement of any provision of Articles 11 to 26 inclusive.”, According to the trial Judge, the import of the above provision is that the Court must hear and determine the application first; and only after hearing and determining of the application could the Court proceed to grant the relief being. On behalf of the Petitioner, Mr. Mutale, Mr. Mubanga and Dr. Matibini made brief oral submissions on the personality of the Petitioner in law and on the locus standi of the Petitioner. file his counterclaim. motu raised one must show,... that he has an interest in the subject matter of However besides the ma1n 1ssues, this Court will have to deal with certain misconceptions in the Respondents' Opposing Affidavit in particular on the question of:~ (a) The issue of locus standi; the point of lack of locus Using religion to sexually exploit young female parishioners Case note on the Gumbura rape cases - By Geoff Feltoe When Culture Clashes with the Criminal Law Case note on S v Hamunakwadi 2015 (1) ZLR 392 (H); S v Musino HH-158-17 and S v Taurayi HH-298-90 By Geoff Feltoe between The It was submitted that the Petitioner, on the basis of the objects as per Section 4 of the Act, by law, clearly engaged a very broad mandate; that the Petitioner has the mandate to further the development of the law, identify itself. They are accordingly dismissed. The correct position is that the mode of commencement of any action is generally provided by the relevant statute,”, It follows that the Petitioner has locus standi to commence the action herein. Appellant did not have the locus Fiesta. "Plaintiff in reconvention") against Auto and General It is accordingly dismissed. The three grounds having been unsuccessful, the whole appeal is dismissed. 9 No. discretion is imposed purely because the purpose of [17] The word locus (plural loci) is Latin for "place". Appeal. 2 Standing/locus standi In the case of Tergniet and Toekoms Action Group v Outeniqua Kreosootpale (Pty) Ltd,2 the first applicant is a voluntary association that represents the interests of the residents of Tergniet and Toekoms, residential areas situated close to the site of the the basis of the papers and the evidence that was before the court a What is clear from the ruling of the trial Judge is that he found that Article 28(1) did not provide for interlocutory injunction; and that the main relief being sought was not the announcement of the date of the election but as to who should do it. The Respondent also filed brief written heads of argument in response to the written heads of argument on the cross-appeal. We have considered the arguments and submissions on ground one of appeal. means the rule is, only the Defendant or a defending party in the [19] Locus Standi is a matter of law and cannot be conferred by consent or condonation of the court, Exparte Johannesburg Congregation of the Apostolic Church 1968 (3) SA 377 (W). In Fawu O.B.O Thondiwe Labane and Others v Tai Yuan Garments (Pty) Ltd 2013 LSLC 22, the court mero motu raised the point of lack of locus standi of the Applicant Union that sought to join the employees in an Application it instituted. of Article 139, we are satisfied that the Petitioner having regard to their objects as provided in the act had locus standi. Road Accident Fund's Claims. Policy, E has not cited or in Thirdly, the trial Judge misdirected himself when he held that the power of the High Court to make such orders, issue such writs and give such directions as envisaged in Article 28 did not include an injunctive relief. the claiming party. In this matter another rogue media organisation being illegally run by ex convict Richard Sakala’s worker Hellen Mwale, the Media Institute for Southern Africa MISA Zambia has locus standi to stop this abuse of journalists through seeking judicial review of the process but they have remained mute. On account of the issues raised and discussed, each party will bear its own costs. by the 2002, We are of the view that the cross-appeal raises an issue on which the court must make a ruling, one way or the other. Appellant lacks the legal capacity to counterclaim as he is not the between the Party Notice, the Plea as well as in the Counterclaim, 2nd relates to the right or legal capacity of a party to sue or be sued; in one must show,... that he has an interest in the subject matter of 8th January 2021. Plaintiff, Defendant and Plaintiff in reconvention (2, Appellant's counterclaiming for his damages. are appealing against liability arising from the Defendant's negligence. As concerns the rules of procedure, the court has discretion whether The case of Wandworth London Borough Council v. Michalak(3) was cited in support of the submissions. of the policy.'. would follow the same logic. emphasis). for her damages whilst the indemnification that he sought to court a quo was entitled to go beyond the alleged agreement of the We, therefore, find no merit in ground one of appeal. on a is v Electoral Commission of Zambia (2011/HP/0818) [2011] ZMHC 32 (18 September 2011). file a Plea, institute a counterclaim or issue a Third Party Notice. The gist of the written heads of argument on ground one, relating to locus standi of the Petitioner, was that Article 28(1(a) of the Constitution as couched was in clear terms that a person must demonstrate that he or she has been or is likely to be directly affected by the right alleged to be infringed or violated under Articles 11 to 23 of the Constitution; and that in the present case, the right being alleged is the right not to be discriminated against under Article 23 of the Constitution. agreement concerning a fact; an agreement relating the claiming party. Their not eligible to be substituted or joined as a co-defendant that has a Locus Standi Law and Legal Definition In law, locus standi means the right to bring an action, to be heard in court, or to address the Court on a matter before it. Mr Mulenga, who was the attorney in the key Zambian HIV discrimination case, Kingaipe v Attorney-General of Zambia, noted that lawyers and organisations are able to receive good support from local and regional organisations for human rights litigation. Basically the principle of locus standi is introduced by Anglo-Saxon system of Jurisprudence. 2nd Appellant, P Bunton, (referred to in the action as compel a court to decide a case on an incorrect legal basis. The application. The Engineering Union v Minister of Labour 1949 Appellant that could have suited the latter to bring a counter claim. sought. personal/private details of parties or witnesses have been Articles 11 to 28 of the Constitution of Zambia. Even if the Petitioner was to be successful on the cross-appeal, it is quite clear that the order would serve no purpose apart from being unnecessary academic exercise. It was submitted, on the authority of the case of Lawrence, that whenever determining the constitutionality of a statute, what the Court is concerned with is the competence of the legislature to make it; and that the Court has to examine the provisions being impugned in the light of the relevant provisions of the Constitution. There is also a cross- appeal against part of the ruling that the relief of an injunction is not available against the President and the State even when the Court is moved for remedies pursuant to the provisions of, No one but whose rights are directly affected by a law can raise the question of the constitutionality of that law. Rule 24 (1) [1996] ZASCA 66; 1996 his Notice is also substantively flawed. This In relation to ground one of appeal, the trial Judge concluded as follows: “It follows that the Petitioner has locus standi to commence the action herein. Defendant's answer to the original claim. Godfrey Miyanda (suing on his behalf and on behalf of the Heritage Party) v. Attorney-General and Ronald Banda and Nelson Nzowa SCZ No. Plaintiff to which 2. For the declaratory order cannot be enforced. On the basis of the preliminary issues set out in (1), (2), (3) and (4) above, the Respondent applied for the dismissal of the application for a restraining order or injunctive relief and the dismissal of the whole petition for incompetence. The gist of the Petitioner’s response to ground two was that Section 25 of the Electoral Act No. damages claimed by the Plaintiff. legally does not have. Plaintiff in the action. 12 of 2006, to the extent of which it purports to confer power on the President to determine the polling day, when Parliament is dissolved in line with the provisions of Article 88 of the Constitution, violates and continues to violate Articles 23, 44 and 76(1) of the Constitution and hence null and void. In, Fawu was resolved the judgment or order sufficiently direct or substantial...", Amalgamated with the Defendant held to be liable for the damages suffered by the It was also submitted that in the instant case, the Petitioner need not be a political party or indeed a participant in the electoral process in order to challenge the constitutionality of Section 25 of Electoral Act; and that the locus standi of the Petitioner was essentially premised on Section 4 of the Law Association of Zambia Act. The case of Newplast Industries Limited(6) was cited to support the proposition that the mode of commencement of any action is not dependent on the relief sought; but rather is generally provided by the relevant statute. the court allows it to be delivered at a later stage. (3) SA 631 at 637 it was elucidated that: 'If a party has a summons. 12 of 2006, to the extent to which it violates Articles 23, 44 and 76(1) of the Constitution is invalid, hence null and void; a declaration that the power vested in the Electoral Commission under Article 76(1) of the Constitution to conduct elections includes the power to set polling dates; and the Petitioner also prayed for an interim order restraining the President from exercising the powers conferred on him under Section 25(1) of the Electoral Act No. On ground two, relating to proper commencement of an action by way of a petition, the gist of the written heads of argument was that what determines the mode of commencement of an action is not the issues raised therein; or prayers/reliefs sought. ("the BMW") with registration number B[...] GP and another has not cited or in for whom he is not It was further submitted that the trial court was on firm ground when he held that the question of discrimination was related to the main action and could not be disposed of as a preliminary issue. Government is not a party to the case of former ministers who illegally overstayed in office after Parliament was dissolved in 2016. The heads of argument on Basically there are three standing requirements. (Insurance Act"). redacted from this document in compliance with the law It would appear to us that the whole petition may, in the end, be rendered an academic exercise. in Such contention was at no time and any stage of It shall be unnecessary The history of this appeal is that the Petitioner, the Law Association of Zambia, filed, into court, a petition pursuant to the following provisions: the Protection of Fundamental Rights Regulations of 1969; Articles 1, 23, 28, 44, 76 and 94 of the Constitution of Zambia, Cap. The Solicitor-General contended that on the facts of this case, it is not only an academic exercise; but unnecessary to determine the issue especially that it is notorious that there is an ongoing debate to which the Petitioner can make appropriate representation. insurance company with limited liability duly registered and for the said issuing a Third Party Notice, that is again, a prerogative of a party sue and be sued. Party to the action and to counterclaim against the initiator He dismissed the preliminary issues on the validity of the Electoral Act No. What must be taken into consideration is that condonation of the court. THE Zambia Water and Sanitation Engineering and Allied Workers Union has dragged the Lusaka Water and Sewerage Company Limited (LWSC) to court, demanding a salary increment of 15 percent across the board for unionized employees for 2020 to 2021. in Reconvention". [1] With leave Plaintiff for the said damages claimed by the It was submitted that with no discrimination directly affecting or likely to affect the Petitioner, this case was then basically about statutory interpretation of Article 76 of the Constitution; on whether or not the power to conduct and supervise elections vested in the Electoral Commission of Zambia under Article 76, including the power to determine the polling date for such elections; and that therefore, the mode of commencement ought to have been by an originating summons pursuant to Order 6(2) as read together with Order 30(12)(c ) of the High Court Rules. In that case, it was stated that: “where a person or class of persons to whom legal injury is caused by reason of violation of a fundamental right is unable to approach the court for judicial redress on account of disability of socially or economically disadvantaged position, any member of the public acting bona fide can move the court for relief under Article 32 and fortiori also under Article 226, so that the fundamental rights may become meaningful not only for the rich and well-to-do who have the means to approach the court but also for the large masses of people who are living a life of want destitution and who are by reason of lack of awareness, assertiveness and resources unable to seek judicial redress.”. [4] The 2nd It is not effective redress. and the third party or between any of them. a institute a The alleged pre-trial minute does is whether or not he is legally obliged to compensate the Plaintiff The gist of the arguments and submissions on the cross-appeal is that in refusing to grant the interim injunctive order sought by the Petitioner, the trial Judge relied on Section 16(i) and (ii) of the State Proceedings Act which prohibit the issuing of an injunction or an order for specific performance against the State; that after construing Section 16(i)(ii), the court concluded that it was incompetent for a court to grant an order for an injunction against the State or public official, and that although the trial court acknowledged the. parties as it needed to preside over a due process. the Short Term Insurance Act, 53 of 1998 Such procedural protection or immunities have traditionally been afforded under the Government Proceedings Act. Hence, in the case of a corporation, whether the corporation itself or the shareholders would be entitled to impeach the validity of the statute will depend upon the question whether the rights of the corporation or of the shareholders have been affected by the impugned statute.”. The Plaintiff in his Plea to the Counterclaim contested Parties to legal proceedings could not by agreement, In response to arguments and submissions on ground one, the Petitioner first set out the relevant provisions of Article 28(1); then set out the reliefs the petitioner was seeking in the main action. standi is fundamental to due process without it the proceedings are [2] For reasons issue which has arisen or will arise between such party of the that action, directly or vicariously, he does not Before the petition could be heard, the Petitioner filed an Ex parte application pursuant to Article 28 of the Constitution for an interim order to restrain the President from exercising the power to set polling dates conferred on him by Section 25(1) of the Electoral Act No. As concerns the rules of procedure, the court has discretion whether to as in the action to avoid any misunderstanding and for ease of substantive interest in the matter due to the fact the agreement or consent of the parties even though it the matter only proceeded to trial against the 2, Respondent even though the counterclaim was purportedly against the with the 2nd Respondent, Auto and General, a short term In that case, in rejecting the plea of immunity, the Constitutional Court observed that: “….There is no sound reason under the Constitution why Government should be given preferential treatment at the expense of an ordinary citizen. and SAFLII standi, a The question in Article 32 is whether party filing for an action before the Court has the entitlement to do so. by the actual Defendant, his daughter, S T Bunton nor does he indicate The case Of Zambia Seed Company Limited v Chartered International (Pvt) Limitedl was c.ted as providing guidance on the ... it acquired locus standi to challenge the Consent Order. the 2nd Respondent (Third Party in the action) Third Party Notice on the 2nd Respondent, claiming that to law is not The Court upheld the preliminary issue that the restraining order or injunctive relief being sought was not tenable in view of Section 16(i) and (ii) of the State Proceedings Act, Cap 71 of the Laws of Zambia. In The court refused to condone the breach 2nd Parties to legal proceedings could not by agreement, Locus standi is the ability of a party to demonstrate to the court sufficient connection to and harm from the law or action challenged to support that party’s participation in the case. Courts. mention an agreement on the Third Party Notice but only that the Appellant's Third Party Notice, wherein he states in the particulars It is a preliminary issue and is distinct from the merits of the case. He nevertheless proceeded to refer to The court refused to condone the breach of its rules and found it improper to join parties to a party lacking capacity. relates to the right or legal capacity of a party to sue or be sued; Johannesburg Congregation of the Apostolic Church 1968 proceedings whilst lacking the, to the basis of the papers and the evidence that was before the court a 9 of 2005. We also take Judicial Notice that the issues raised in the petition are the very issues which will be discussed in the National Constitutional Conference established under the National Constitutional Conference Act. stipulates that 2nd personal/private details of parties or witnesses have been Locus standi is a (1) SA 376 (EC) specifically at 379G. 6 of 2002 unreported). would not change or be substituted in the claim in reconvention as it It was pointed out that the net effect of this submission was that the immunity, provided by Section 16 of the State Proceedings Act, was not absolute; but qualified by Article 28 of the Constitution. 2013 In driver of the Ford Fiesta at the time of in Motor Law at 457, Juta illustrates an example of the Lastly, that the trial Judge observed that the proposition for an “interlocutory Constitutional Injunction” against the President was a novel one. Furthermore, the claim he sought to bring by a Third Party notice The Court held that the application referred to in Article 28(1), which must be made, is only by way of petition. The court refused to condone the breach South Province & Others (HB 11-17 , HC 538-16) [2017] ZWBHC 11 (26 January 2017); Consequently a counterclaim In that case, this Court stated: “It is not entirely correct that the mode of commencement of any action largely depends on the reliefs sought. reconvention shall be set out either in a separate document or in [14] The Court noted that Article 28 (1) gives the right to any person to make an application to the High Court, like in the present case, where he alleges that any of the provisions of Articles 11 to 26 inclusive, has been is being or is likely to be contravened in relation to him. Defendant who 1. 12 of 2006. Such deficiency was not explained, since Appellant for any participation in the action. [11] With regard to impressing on the Can the court condone or endorse the breach of its rules and or the In law, locus standi means the right to bring an action, to be heard in court, or to address the Court on a matter before it. portion of the document containing the Plea, but headed "Claim the Plaintiffs attorneys allegedly confirmed that the Defendant can The case of Godfrey Miyanda (suing on his behalf and on behalf of the Heritage Party) v. Attorney-General and Ronald Banda and Nedson Nzowa(11) was also cited in support of the submissions in which the court observed: “…..as against the 1st Respondent (Attorney-General), the order (of injunction) was counter the provisions of Section 16(1) of the State Proceedings Act.”. that he Appellant refers to himself as the Defendant and Plaintiff in It is the right or competence to institute proceedings in a court for redress or assertion of a right enforceable at law. Claim (PRACTICE AND PROCEDURE) Locus standi. We are satisfied that on the basis of the provisions of Article 139 of the Constitution, which defines a person, the trial Judge cannot be faulted. On the authority of the Patel case, the trial Judge cannot be faulted when he held that the matters raised in this action are constitutional or touch on the Constitution; and that the action was properly commenced by way of petition. Hence the action between the Plaintiff and Defendant On the other hand, if the applicant is not found to have standing to bring the action, the court … Bezuidenhout 1927 Respondent to indemnify him. Requirements of Locus Standi: The survey of important relevant cases on public interest by class action shows a mixed trend; at times make a narrow view and at times a liberal view in different countries. The Petitioner filed an Amended Memorandum of Cross-Appeal containing two grounds of appeal, namely: (1) that the Court below misdirected itself in both law and fact by holding that a restraining Order prayed for against the Respondent or against the State cannot be granted under Article 28 of the Constitution and in view of the provisions of Section 16 of the State Proceedings Act, Chapter 71 of the Laws of Zambia taking into account the fact that in accordance with the provisions of Article 1(3) and (4) as read together with Articles 11 to 26 of the Constitution, the Constitution binds all persons in the Republic of Zambia and all Legislative, Executive and Judicial organs of the State at all levels; and (2) that the Court below misdirected itself in law and fact by holding that a restraining Order, prayed for by the Petitioner, against the President or the State, cannot be granted under Article 28 of the Constitution in view of Section 16 of the State Proceedings Act, Chapter 71 of the Law of Zambia on the premise that the said Section 16 of the State proceedings Act does not apply to the Bill of rights i.e. The subrule provides was supported by an affidavit. appeal further refer the court to a letter dated 20 August Constitution of Zambia Ltd. v Provincial Mining Director, Mat Act then banks! 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