Konkola Copper Mines Plc (KCM) has asked the Lusaka High Court to dismiss an application by Vedanta Resources Holding Limited in which it wants the court to discharge the ex-parte order allowing Maxwell Mainsa, the in-house counsel of the mining company, to file an answer and affidavit to the winding-up petition.

In this matter, ZCCM Investments Holdings has petitioned the Lusaka High Court, seeking an order that KCM should be wound up for engaging in tax evasion and being managed in a manner detrimental to its interest, among other allegations.

Vedanta had previously asked the court to set aside the Ex-parte order dated July 4 which it granted to KCM allowing them to file their answer and affidavit out of time.

Herman Uys a representative of Vedanta, had argued that there was no basis for granting an exparte order to KCM lawyer, Mainsa, who reports to and receives instructions from the Provisional Liquidator Milingo Lungu to file an answer and affidavit on behalf of KCM, opposing the winding up petition out of time.

Uys observed that a perusal of the affidavit and answer to the petition filed by Mainsa based on the Ex-parte order, purport to show that on the hearing of the winding up petition, KCM will admit to the commercial insolvency of the mining company, against its own interests.

But KCM has opposed to Vedanta’s application, saying the court acted within the law and that the contributor (Vedanta) was not a party to the proceedings and as such could not question the granting of the ex-parte order.

In its skeleton arguments in opposition to the Vedanta’s summons for an Ex-parte order to discharge or set aside the exparte order dated July 4 allowing KCM to file answer and affidavit out of time, KCM prayed that Vedanta’s application be dismissed with costs.

It argued that Vedanta had no locus standi in the matter and that the remedy lay in the other other side, which is ZCCM-IH being the petitioner, to issue summons for inter-parte hearing if it was dissatisfied with the decision of the court.

The mining company stated that the filing of the application for an Ex-parte order was proper and there was real urgency in the matter as any further delay would have entitled ZCCM at most, to have the petition heard without KCM’s answer.

It added that this would have prejudiced the interests of KCM and deprived the court an opportunity to hear from the mining company.

“Paragraph four of the practice direction is very clear that the other ‘side’ party may issue summons too for inter-parte hearing if necessary or need be. This paragraph recognises that only the “other side” may issue such summons. The other side simply mean the other party to the matter. The remedy does not and cannot lie in setting aside the Ex-parte order granted,” KCM stated.

It indicated that the court had ruled on August 7, that the other other side was ZCCM-IH and not Vedanta, as such they cannot even make an application to set aside the ex-parte order.

KCM further stated that the decision by Vedanta’s directors to instruct Messers Nchito and Nchito to make an application before court for a determination on whether the directors had the right to appoint advocates of their choice, showed that the directors were only representing the interests of the Contributor and not those of KCM.

“Clearly the interest of the said directors are to represent the interests of the contributor and not those of the respondent, who if it did not represent itself might expose itself to legal risk,” it stated.

KCM argued that Vedanta’s trouble with the Ex-parte order came from the fact that Mainsa had brought facts before court as they appeared to help the court make a decision and had refused to be used to circumvent the course of justice.

It stated that Vedanta could not involve itself in selecting who should manage the affairs of the company or file the answer or affidavit to the proceedings because that was the duty of in-house counsel and management team.

KCM argued that allowing the application filed by Vedanta would give powers to the contributor or shareholders which they did not posses.

“While the contributor seeks to attack and have the July 4 Ex-parte order discharged and the affidavit expunged, the contributor has not advanced before you any concrete evidence or arguments as to why this court should vacate the Ex-parte order, save for unsubstantiated claims that the in-house counsel is under the control of the provisional liquidator who in this case was appointed by the court. The application by the contributor is not only misconceived but also not tenable at law,” argued KCM.