JUDGMENT is on today in the case where former lands and natural resources minister Jean Kapata and former justice minister Given Lubinda sued News Diggers Media Limited and the Environmental Investigation Agency (EIA) for libel in January 2020.
.
Kapata, Lubinda and former president Edgar Lungu’s daughter, Tasila, had sued News Diggers Media Limited, its managing editor Mukosha Funga Njenga and the EIA in connection with a story on illegal Mukula trade. However, Tasila withdrew her defamation claims against the defendants in 2023.
The trio had complained against an article contained in News Diggers’ edition of December 6, 2019, titled “Lungu, Tasila in Mukula cartel” as well as the EIA’s publication of December 2019 titled “Mukula cartel: how timber trafficking networks plunder Zambian forests”, among other articles.
The case was heard by Lusaka High Court Judge Pixie Yangailo and trial commenced on February 14 2023.
Below are the highlights of the case:
(First day of trial)
Judge Pixie Yangailo: Appearances for the record?
Bonaventure Mutale SC: Much obliged my lady, for the plaintiffs, the following advocates and firms represent the three plaintiffs; B C Mutale from Ellis and Co, Ms M Mukuka Ellis and Co as well, Mr T Kasweshi Ellis and Co. For Messrs Kaunda Kaunda and Mwila Legal Practitioners, there’s is Mr K Kaunda and Mr A Mwila, much obliged.
Judge Yangailo: For the first defendant?
Mutembo Nchito SC: First defendant and second defendant, there is E Kaluba and O Sambo both of Mwenye and Mweetwa Advocates. For the third defendant, M Nchito SC, I’m assisted by Mrs M Chakoleka, Mr C Hamwela and Ms N Chibuye…
Mutale SC: The plaintiffs are ready with their case. We call the first plaintiff Mr Lubinda.
GIVEN LUBINDA
Lubinda takes the stand and swears on the Bible
Mutale SC: Can you give the court your full names and all your particulars?
Lubinda: My lady, my names are Given Lubinda. I’m a politician and a businessman. I currently reside at plot 2141 Hillview Park, Libala, Lusaka.
Mutale SC: So you are a politician and businessman, how long have you been in business and also as a politician?
Lubinda: My lady, I have been in business for close to 40 years, and I have been a politician since 1998.
Mutale SC: As a businessman what sort of businesses are you into?
Lubinda: My lady, I’m in real estate development and management, I am into farming and I’m into trading.
Mutale SC: Mr Lubinda you commenced action against the three defendants for libel, summarise the claim against the defendants.
Lubinda: My lady, over a period of 14 days starting from December 6, 2019 until December 19, of the same year, the three defendants caused the publication of more than 10 publications in both hard and soft copy. Of these publications, about seven were opinions and four were articles. One was a report. These articles, report and opinions cast a bad light on me. The article of December 6, 2019 written by the first defendant, published by the second defendant referring to a report produced by the third defendant was entitled ‘Lungu Tasila in Mukula smuggling’.
Mutale: What sort of bad light did that article portray you?
Lubinda: My lady, the whole article was referring to me, among others, as being involved in the illegal trade of Mukula. The gist my lady can be found at the first paragraph of the said article.
Mutale SC: Would you read that paragraph?
Lubinda (proceeds to read paragraph): ‘An American based organisation called Environmental Investigation Agency (EIA) has released a report into the smuggling of Mukula logs in Zambia, which has implicated President Edgar Lungu, his daughter Tasila, Justice Minister Given Lubinda, his lands counterpart Jean Kapata and a traditional leader, among other influential figures’.
Mutale SC: You had talked about the articles casting a bad light on you?
Lubinda: Yes my lady. My lady, on this very page there’s a graphic presentation showing a matrix with drawings of five recognisable people who are actually named as president Edgar Lungu, minister Jean Kapata, minister Given Lubinda, Tasila Lungu, Chief Kafula Musungu the second, and it has five unidentifiable imprints of faces and has on the top of it, the logo of ZAFFICO. This representation my lady is what the article was referring to as the Mukula cartel.
Mutale SC: Yes, Mr Lubinda, I will take you to part of what the defendants have said in their defence, paragraph 7 (4) of their defence. This is what they have said in relation to you, ‘it will further be shown at the trial that the first plaintiff’ meaning yourself, ‘received huge amounts of money from Chinese traders connected to Mukula trade and you used that same money to purchase property in Forest Reserve 27’, what do you say?
Lubinda: My Lady, it cannot be furthest from the truth. I have never ever associated myself with any Mukula traders and, My Lady, I have never received any money in connection with the trade of Mukula or from any Chinese firm trading in Mukula.
Mutale SC:… In relation to this paragraph, I will read again, ‘it will further be shown at the trial that the first plaintiff received huge amounts of money from Chinese traders connected with Mukula trading’ and you have just given your explanation.
Lubinda: I have given my explanation, My Lady, that I have never received any money from any person or company in relation to Mukula trade. I have never. Yes, I have received money which I can explain. Yes, my account domiciled at Barclays Bank currently ABSA, My Lady, was credited with a number of amounts in US dollar remitted by two Chinese companies, one being a subsidiary of the other in relation, My Lady, with a loan agreement that I entered into with the holding company in 2016. My Lady, neither the holding company nor the subsidiary are involved in Mukula trade.
Mutale SC: What are the names of those companies?
Lubinda: The holding company, My Lady, is Ruichang Quindag (Qingdao) Industrial Cotton Limited. And, My Lady, you may excuse me if the spellings are not exact, these are Chinese names. And the subsidiary is called China Africa Cotton Zambia Limited. Those are the two companies, My Lady.
Mutale SC: You said you accessed a loan from the company, in your bundle of documents do you have documents that relate to that transaction?
Lubinda: Yes, My Lady, on page nine of my bundle of documents is a request for a loan in the amount of US$300,000 dated November 7, 2016. On pages 10 to 14 is the loan agreement dated November 18, 2016 entered into between Highview Investments Limited, a company for which I’m chairman, a family company, as borrower and Qingdao Ruichang Cotton Industrial Limited being the lender.
Mutale SC: Yes Mr Lubinda, you had indicated in your opening comments that the sum effect of all those articles has cast you in bad light. Can you just elaborate what you meant by that?
Lubinda: My Lady, the articles that I presented before you are vexatious. They refer to me as a person who benefits from illegalities. They refer to me, My Lady, as a corrupt person. They refer to me, My Lady, as a crook. They go further to say I and others they have named deserve to be humiliated! My Lady, they create an impression, a bad impression that I’m not fit to hold public office…
Mutale SC: My Lady, the witness is now ready for my brother Mr Nchito, cross examination.
CROSS EXAMINATION
Emmanuel Kaluba (representing News Diggers Media Limited): Let me take you back to the beginning of your testimony this morning. In your testimony this morning, you told this honourable court that your claims before this honourable court are based on 10 publications which are made up of seven opinions, four articles and one report. Is that correct?
Lubinda: It is correct, My Lady.
Kaluba: So, which of those articles do you regard as opinions? If we were to go to the bundle of these documents, which of those articles do you regard as opinions, could you tell this honourable court that these are opinions? Identify the seven opinions.
Lubinda: (Checks his bundle of documents and directs the court to where the seven opinions are)… those, My Lady, are the seven opinions that I referred to.
Kaluba: Thank you very much. So, having agreed with me that out of the 10 publications you are complaining about, seven are in fact opinions. Do you agree with me that an opinion is in fact not a statement of fact?
Lubinda: My Lady, I did refer to these opinions…
Kaluba: Honourable, the question has been asked, answer the question. If you want to explain, my learned colleagues are very much available to come in, in re-examination in the interest of time.
Lubinda: Very well.
Kaluba: So, could you agree with me an opinion is not in fact a statement of fact?
Lubinda: An opinion is an opinion, My Lady.
Kaluba: Thank you. And would you agree with me that the issues of illegal Mukula trading is a public issue which stimulates public interest?
Lubinda: It is, My Lady.
Kaluba: Could you also agree with me that at a time of the alleged publications, all the three plaintiffs in this matter in fact occupied public office?
Lubinda: Indeed, My Lady.
Kaluba: And you would also agree with me that as politicians occupying public office, all the three plaintiffs were presiding over public resources?
Lubinda: They were, My Lady, but not in illegal trading of Mukula.
Kaluba: So, is it wrong for media houses and members of the public to express opinions on matters of public interest?
Lubinda: My Lady, not when there…
Kaluba: No! Let’s not go there. It can only be a No or a Yes. If you have an explanation, it will be given to you in re-examination. So, my question to you is; is it wrong for members of the public and media houses to express opinions on matters of public interest?
Lubinda: It is not wrong, My Lady.
Kaluba: Would you also agree with me that members of the public including media houses have the right to comment on public officials and criticising them?
Lubinda: They have the right, My Lady.
Kaluba: Now, honourable Lubinda, in your attempts to justify the source of the $180,000 that was paid into your account, you led this honourable court to a certain document; this must be a contract. My lady, I’m trying to locate this contract… Okay, you made reference to the documents at pages 10 to 14 of the plaintiffs’ bundle of documents. So, who were the parties to this quoted contract?
Lubinda: My Lady, the borrower was Highview Investments Limited, a family company for which I am chairman and the lender was Qingdao Ruichang Cotton Industrial Company.
Kaluba: So, would I be correct to say Highview Investments Limited is an incorporated company under the laws of Zambia?
Lubinda: It is, My Lady.
Kaluba: So, it is a separate legal entity from Given Lubinda and family? Is that correct?
Lubinda: It is, My Lady.
Kaluba: You would agree with me that there is no evidence before this court to show that the Chinese entities made those payments to Highview Investments Limited?
Lubinda: My Lady, they made payments to Given Lubinda account.
Kaluba: You would agree with me that the money was actually spent by Given Lubinda?
Lubinda: Yes, My Lady, some was spent by Given Lubinda and some by Highview Investments.
Kaluba: So, it’s actually true that Given Lubinda received $180,000 from a Chinese entity. That’s correct?
Lubinda: That is correct, My Lady.
Kaluba: And you also told this honourable court that the lender in this loan agreement at page 10, the Chinese entity, the lender in this loan agreement at page 10 had no dealings in Mukula? That was your position right?
Lubinda: That is my position, My Lady.
Kaluba: Thank you, My Lady. So, honourable Lubinda I put it to you that you know the entities which were involved in Mukula trading by virtue of saying the entities were not involved?
Lubinda: My Lady, if I know a person who is not a witch it doesn’t mean I know the witch.
EIA’s counsel, Mutembo Nchito SC, continues with cross-examination…
Nchito SC: Yes, I wanted to start off on the loan that you were discussing with my learned friend. This company which Zambians, we pronounce as Queendao (Qingdao), but you are pronouncing as Kingdao, the correct Chinese pronunciation. Where is their office in Lusaka?
Lubinda: My Lady, they don’t have an office in Lusaka.
Nchito SC: Okay, and where do they operate their banking business for the public to access them?
Lubinda: Their banking business, My Lady, is done from Hong Kong.
Nchito SC: So, they have a bank in Hong Kong?
Lubinda: Yes, My Lady.
Nchito SC: You are now telling the court now that Qingdao Ruichang has a bank?
Lubinda: They operate their accounts from a bank in Hong Kong…
Nchito SC: They don’t have a bank?
Lubinda: They don’t have a bank.
Nchito SC: So if I want to borrow from Qingdao, how do I go about it? Where do I find them?
Lubinda: My Lady, if you have a relationship with them, if you are friends with them; you could access them, you can borrow.
Nchito SC: Where did you know them from?
Lubinda: My Lady, I did Indicate [that] they have a subsidiary company operating here in Zambia, under the name China Africa Cotton. And I knew some of the directors here in Zambia and others in China.
Nchito SC: May I ask how you came to know the directors?
Lubinda: My Lady, I met the director running China Africa Cotton in Zambia when he was introduced to me by some common friends.
Nchito SC: You see, you have come to court trying to get damages from people because you say you are a clean man. You have to be willing to explain in detail so that you can convince the court. Right now, I’m not so sure. Let’s try again. Where did you meet them?
Lubinda: My Lady, I met them at a common friend’s house.
Nchito SC: You have to tell us who? Unfortunately, that’s trial. Where? How? When?
Lubinda: My Lady, I met the local directors at a friend’s house in the name Gulam Patel.
Nchito SC: So, you met these Chinese cotton traders according to you, at Gulam Patel’s house. Correct?
Lubinda: Correct.
Nchito SC: Where?
Lubinda: I do not know the address, My Lady, but at Gulam Patel’s house in Makeni.
Nchito SC: What were you doing at Gulam Patel’s house?
Lubinda: My Lady, Gulam Patel has been a long-time friend, so I was visiting Gulam Patel as a friend.
Nchito SC: The same Gulam Patel who had agricultural contracts with the government of the Republic of Zambia. Is it?
Lubinda: Precisely.
Nchito SC: The one who was supplying fertilizer?
Lubinda: Precisely.
Nchito SC: When you were minister of agriculture, correct?
Lubinda: I knew him before then…
Nchito: No, no, no…I’m not asking when you knew him, I’m just saying it’s the same Gulam Patel that you are talking about?
Lubinda: Yes.
Nchito SC: So, tell us; how did you move? What was happening at Gulam Patel’s house when you met Qingdao? By the way, I still want you to tell us who you met because we are talking in general… What was happening at Gulam Patel’s house?
Lubinda: My Lady, we had gone for dinner.
Nchito SC: At the time that you were getting this loan, alleged loan. What were you?
Lubinda: My Lady, I was minister of Justice.
Nchito SC: Now, kindly tell the court, how did you end up borrowing as former minister of Agriculture or minister of Justice from a Chinese cotton company? How did it start?
Lubinda: I asked, My Lady, and they showed willingness to lend.
Nchito SC: Isn’t it true that you paid money, the money that you received from the Chinese company to purchase a property in Kingsland City in Lusaka?
Lubinda: It is true, My Lady.
Nchito SC: Yes, honourable Lubinda, so when you changed use of the money from constructing a school rather boarding house or hostel, office to now Kingsland investments, did you go back to your lenders and say ‘I’m changing use of the money that I borrowed, I’m diverting it to myself not the company’?
Lubinda: Yes, I did My Lady.
Nchito SC: You have the documents?
Lubinda: Not in the documents before the court.
Nchito SC: Just out of interest, when you borrowed, when you signed this…when this money came into your personal account, how did you account for it with ZRA? You know, the rest of us have to pay tax when you receive especially for huge amounts of money. How did you account for it?
Lubinda: My Lady…
Nchito SC: What did you tell ZRA this money was for?
Lubinda: My Lady, this was a loan.
Nchito SC: No, Mr Lubinda, be very careful. I might even admit that this is a tricky question. So, be very careful as you answer this question. What did you tell ZRA about this money that came into your personal account? If you didn’t, you will be a wiser man to say I didn’t. It’s better to be truthful than [to be] found wanting.
Lubinda: I didn’t My Lord, My Lady.
Nchito SC: So, you got money from your Chinese friends into your personal account and you didn’t tell ZRA?
Lubinda: No, I did not.
Nchito SC: And you were minister of justice?
Lubinda: Yes, My Lady.
Nchito SC: And you know of companies that were closed for not paying tax?
Lubinda: I am aware of them.
Nchito SC: Mr Lubinda, you are the one who has brought people to court, who are calling you; according to you, they are saying you are corrupt, you are dishonest and all these things that you are complaining about, you have failed to explain. You see why we don’t sue others? Explain, how many properties did you buy at Kingsland?
Lubinda: Two properties, My Lady.
Nchito SC: I want you to confirm for the court, what amount you received exactly from Qingdao, how much did you receive?
Lubinda: My Lady, we received a total of $230,000.
Nchito SC: What did you tell the court you received yesterday?
Lubinda: My Lady, yesterday I was referred to the statement, I was not asked that question.
Nchito SC: You were not asked to say what amounts you received?
Lubinda: Yes.
Nchito SC: What were asked to do?
Lubinda: To refer to the statement and to explain the amount received on that statement.
Nchito SC: Okay. So, according to the statement and what you told the court yesterday, how much did you receive?
Lubinda: According to the statement on the record, we received $150,000.
Nchito SC: But according to you now, on the pain of cross examination you are saying that in fact, you received $230,000? Correct?
Lubinda: Yes, My Lady. Because the second page of the statement, the 80,000 is not here, and was not referred to.
Nchito SC: But why is it not here?
Lubinda: My advocates will better answer that, My Lady.
Nchito SC: So, let me go back to the question I asked you right at the beginning, how much of this money went to Kingsland?
Lubinda: $50,000, My Lady.
Nchito SC: That’s all?
Lubinda: That’s all.
Nchito SC: Mr Lubinda, do you recall telling the court that as far as you knew, Qingdao was involved in cotton business, no other, remember that?
Lubinda: I do, My Lady, to the best of my knowledge.
Nchito SC: Are they registered to do banking business in Zambia?
Lubinda: Not to my knowledge, My Lady, I don’t know.
Nchito SC: And yet you approached them for money? Correct? You?
Lubinda: Correct, My Lady.
Nchito SC: You were also very categorical in asserting that ‘they are not involved in Mukula at all’, remember?
Lubinda: To the best of my knowledge, they are not.
Nchito SC: No, I’m not asking you to answer now, I am referring you to your testimony, yesterday. You were categorical that they were not involved in Mukula? Correct?
Lubinda: Yes, I said as far as I am concerned, they are not. To my knowledge, they are not.
Nchito SC: So I will ask you again, how do you know that they are not involved in Mukula?
Lubinda: Because I have no knowledge of that.
Nchito SC: So, for you, if you don’t know then they are not [involved]? And that’s the basis?
Lubinda: If I don’t know, I don’t know, My lady.
Nchito SC: My Lady, I would like to refer the witness to the statement of claim in the copy of the bundle of documents. I would like to draw your attention to page 36… Mr Lubinda, according to this document and paragraph 30, your complaint is that these articles according to you, have painted you and your colleagues as being corrupt. Correct?
Lubinda: Correct, My Lady.
Nchito SC: And that you do not care for the Zambian people?
Lubinda: Correct, My Lady.
Nchito SC: And according to you, your interpretation is that your conduct, if true in these documents, describes you as morally bankrupt? I’m just reading what’s in the documents.
Lubinda: Correct.
Nchito SC: And that you will therefore not be fit to hold public office?
Lubinda: Correct.
Nchito SC: I’m looking at number 5. That you do not care about the environment. Correct?
Lubinda: Correct.
Nchito SC: That your conduct is anti-development. Correct?
Lubinda: Correct.
Nchito SC: Would it be defamatory if in fact this is true?
Lubinda: If it is true, no.
Nchito SC: So, I will be right to say, if you have been corrupt and somebody says you are corrupt, it’s not defamation, correct?
Lubinda: Correct, if it’s a statement of facts.
Nchiito SC: Yes. So, would you say that a person who evades, for instance, paying taxes is fit to hold public office?
Lubinda: No.
Nchito SC: You are not aware that there was a military operation to escort Mukula trucks to the ports of export?
Lubinda: I’m not aware, My Lady.
Nchito SC: What was your position in the Patriotic Front party in 2019? What was your designation as an MCC?
Lubinda: In 2019, My Lady, I was chairman responsible for agriculture and livestock development.
Nchito SC: So, you were in the executive? The main policy-making body of the party, right?
Lubinda: I was a member of the central committee of the party.
Nchito SC: Do you recall, if you don’t it’s fine, that there were newspaper reports of your own party cadres stopping a military convoy that was headed for Chirundu at Chilanga before the Shimabala tollgate with ladened Mukula? Do you recall that incident?
Lubinda: I don’t recall reading anything about that, My Lady.
Nchito SC: Have you ever done a personal return for tax?
Lubinda: My Lady, I was in formal employment until 2021 and I was relying on Parliament on which I was paying Pay As You Earn, I’m now in the process of preparing a personal income tax return for the period 2022, My Lady.
Nchito SC: So, you are telling the court that you managed all these properties together with your wife and there is no tax return at all because you were in formal employment?
Lubinda: No, My Lady.
Nchito SC: No what?
Lubinda: I’m agreeing that there is no tax return.
Nchito SC: Why not? The rest of us are scared of ZRA.
Lubinda: Because the major source of revenue, My Lady, is rentals on which we were paying tax on rentals and withholding tax.
Nchito SC: And on the other income?
Lubinda: We figured, My Lady, those were not major income earners.
Nchito SC: So, in other words, Mr Lubinda, you have not been remitting tax on your other income with ZRA, correct?
Lubinda: You may say so, My Lady.
Nchito SC: Would it be right to say that in fact, you have been evading tax, correct?
Lubinda: I’m not sure about that, My Lady.
JEAN KAPATA
Mutale SC: My Lady, the second plaintiff has some back problems, we ask the court to allow her that she gives evidence while seated and as a result of that same condition, Your Honour, she’ll need to stretch after about two or so hours for five to 10 minutes or so.
Judge Yangailo: Noted.
Mutale SC: Most obliged. You can give the court your full names.
Jean Kapata: My lady, my full names are Jean Kapata I reside at 10789 in Roma, Lusaka, I am aged 63 years old. I am a farmer and a politician.
Mutale SC: Yes, Ms Kapata you are in this court in which you sued the defendants. Can you explain why you are in this Court for her Ladyship?
Jean Kapata: Thank you your Ladyship. I am in this court following some publications that appeared my lady in the News Diggers Newspaper that is in 2020. My lady, I think I made a mistake on the dates, maybe if I could have my bundle of papers so that I can refer to the papers so that I can give the correct dates.
Mutale SC: The bundle of documents.
Jean Kapata: My lady, point of correction it was first publicised on the 6th of December, 2019.
Mutale SC: Yes, go on. You referred her Ladyship to a publication.
Kapata: Yes, your ladyship. This is a publication dated 6th December, 2019, by the Diggers Newspaper and front page; Lungu, Tasila in Mukula cartel.
Mutale SC: Can you explain why you are offended by that article?
(Defence lawyer) Hamwela: Who says she was offended?
Kapata: I was offended.
Judge Yangailo: Can you keep quiet. When Counsel is speaking, keep quiet.
Hamwela: I don’t intend to disturb the Counsel in examination in chief but maybe we just avoid leading (the witness).
Judge Yangailo: Avoid leading.
Mutale SC: Yes. Yes Ms Kapata, can you explain to the court?
Kapata: Well, this publication my lady was very much defamatory. It injured my persona, it also injured my family my lady. It injured the government, it also injured the party that I belonged to. This is a publication my lady. It’s not true that there was a cartel on Mukula and also my lady, it’s demeaning. Being a woman, it’s also abuse against a woman.
Judge Yangailo: Cross examination.
Kaluba: Much obliged my lady. Honourable Kapata, good morning to you. At the last sitting, you were not well. So, how are you feeling now?
Kapata: I am a bit better. At least the pain is controlled thank you.
Kaluba: That’s good to hear. You served as a Cabinet minister in the Patriotic Front government for the last five years. Is that correct?
Kapata: It’s not correct.
Kaluba: It’s not correct? Please state the correct position.
Kapata: My lady, I’ve been a minister from the time the Patriotic Front won an election. In 2011, I was appointed as deputy minister in the ministry of community development and social services, mother and child health and…
Judge Yangailo: Slowly.
Kapata: In the year 2012, I was elevated to the position of Cabinet minister in charge of tourism. After the election in August in 2016, I was then given the position of minister of lands and natural resources. I submit my lady.
Kaluba: If I got you correctly, you served as minister of lands and natural resources for five years?
Kapata: Yes, for five years.
Kaluba: And during that period, you were charged with the responsibility to manage the country’s lands and natural resources on behalf of the people of Zambia am I correct?
Kapata: Yes my lady.
Kaluba: And this was supposed to be done for the benefit of the people of Zambia and not just politicians. Am I correct?
Kapata: It’s for the country my lady.
Kaluba: So, if in the manner in which you managed these natural resources, there is an impression that was created that in fact, only politicians are benefiting, it will be justifiable for members of the public to comment on that, isn’t it?
Kapata: If it has been put in the public domain.
Kaluba: By accepting the appointment of Cabinet minister, you actually agreed to be amenable to public scrutiny, isn’t it?
Kapata: Yes my lady.
Kaluba: Okay. Do you remember signing a Statutory Instrument by which the importation of Mukula was banned in 2017?
Kapata: Yes my lady.
Kaluba: Honourable, are you aware that in fact Mukula trading continued even after you passed this SI?
Kapata: There was illegal cultivation My Lady and even today it has continued.
Kaluba: So, you will agree with me that trade of Mukula continued even though there was a ban?
Jean Kapata: Before the ban was done, as Cabinet we allowed the people that had licences to finish off with their licences but we were not issuing new licences. That’s where the control was.
(Kapata tells court PF lost an election because of Diggers)
Nchito SC: Now, one of your complaints when you started testifying is that the reports were offending according to you, to you personally, to your family and also to the government, to the party to which you belong. Remember that?
Kapata: Yes, My Lady.
Nchito SC: The injury part if I could read it verbatim; the communication was defamatory, it injured my persona, injured my family, it injured the government and party that I belonged to. Remember that?
Kapata: Yes, My Lady.
Nchito SC: How did the publication injure the party and government?
Kapata: My Lady, the headlines …
Nchito SC: Just slow down.
Kapata: The headlines My Lady, which were coming out continuously for almost three, four days from [News] Diggers Newspaper. those were quite dangerous because they were all assumptions, My Lady.
Nchito SC: I am talking about the party and government. Please address the question.
Kapata: How it injured the party?
Nchito SC: And the government. I am just reading what you said. You said it injured the party and…
Kapata: We lost an election. My Lady, we lost an election.
Nchito SC: So, you are here because you lost an election?
Kapata: That was, My Lady, one of the reasons.
(We all disobeyed court judgement against Mukula ban – Kapata)
Nchito SC: Do you remember the finding that the Court made about the ban that you had announced?
Kapata: Yes, My Lady. It’s there in my bundle.
Nchito SC: Sorry?
Kapata: It’s in the defendants’ bundle, yes. I read the judgement, My Lady.
Nchito SC: And, did you agree with the judgement?
Kapata: No, My Lady, because the Attorney General was the custodian of all the legal matters to do with the ministry. As ministry of lands and natural resources…
Judge Yangailo: Slowly.
Kapata: Sorry.
Nchito SC: What question are you answering?
Kapata: About the…I said no.
Nchito SC: So, your answer is you didn’t agree with the judgement?
Kapata: Yes.
Nchito SC: Okay. You can explain.
Judge Yangailo: The Attorney General was the custodian…
Kapata: He was the custodian of all legal matters pertaining to any ministry and judgement was passed, My Lady, I did not receive any letter to inform me that we had lost that case in Court.
Nchito SC: You did not receive any letter to inform you that what?
Kapata: That we had lost the case in Court.
Nchito SC: Please, go to page 164 of that bundle. You have found it?
Jean Kapata: Yes, My Lady.
Nchito SC: What is that page and document?
Jean Kapata: Page 164, in the High Court of Zambia. It’s judgement My Lady.
Nchito SC: It’s a judgement between who and who?
Jean Kapata: The judgement is between Kalowa Mooto suing as the Secretary General of the Zambia Association of Timber and Forestry Based Industries and the Director of Forestry and the Attorney General as first and second respondents.
Nchito SC: And in your own words what was that judgement about since you read it?
Jean Kapata: My Lady, the judgement was that the timber association won the case in Court.
Nchito SC: My question is simply; according to the judgement which you say you’ve read, did you have the power, you as the minister of lands then, to do what you did, to ban the export and harvesting of Mukula?
Jean Kapata: I didn’t have, My Lady.
Nchito SC: Yet you did not obey that judgement, did you?
Jean Kapata: I didn’t.
Nchito SC: Now, is there anyone permitted to disregard a judgement?
Jean Kapata: No, My Lady.
Nchito SC: …is it a proper use of power for the president and his Cabinet to disregard a judgement of the High Court?
Jean Kapata: No, My Lady.
Nchito SC: Okay. Let’s go back to your testimony in chief. You told the Court that apart from disobeying Court judgements, you are also a farmer? Do you farm?
Jean Kapata: Yes, My Lady. I do own a farm.
Nchito SC: Where do you farm?
Jean Kapata: In Mwembeshi, My Lady.
Nchito SC: Mwembeshi where?
Jean Kapata: My Lady, my farm is about 10 kilometres away from Mwembeshi Prison.
Nchito SC: Out of interest, how many hectares is this farm?
Jean Kapata: My Lady, it’s about 36 hectares.
Nchito SC: When did you acquire it?
Jean Kapata: My Lady, I acquired it in 2010.
Nchito SC: From who?
Jean Kapata: My Lady, just from villagers around that area.
Nchit SC: So, Honourable Kapata, how many other properties do you own since 2010? You and your family.
Jean Kapata: My Lady, I own a house in Roma which was built in 2009, I also own next to my house there are some refurbished flats, unfinished flats…
Nchito SC: Which were built when?
Jean Kapata: I began building those flats around 2014.
Nchito SC: Yes, what other properties?
Jean Kapata: I have another small plantation of avocadoes in Mongu there which is 17 hectares.
Nchito SC: When did you acquire that?
Jean Kapata: That was around 2015 through traditional land. And also in Kitwe, a house where my mum lives, jointly owned by myself and my siblings. In the United States of America; there are four flats there and that’s for my mum.
Nchito SC: When was that acquired?
Jean Kapata: The Kitwe plot must have been between 2012 and 2013.
Nchito SC: Yes, we are on number four.
Jean Kapata: There is a piece of land I was given in Lufwanyama, it’s about 15 hectares.
Nchito SC: By who?
Jean Kapata: By Ndola ministry of lands. I was given through the Ndola office. Ministry of lands in Ndola.
Nchito SC: In Lufwanyama?
Jean Kapata: Yes.
Nchito SC: When?
Jean Kapata: I can’t remember the date but when I was minister of lands.
Nchito SC: When you were minister of lands, you were given land in Lufwanyama?
Jean Kapata: Yes, My Lady.
Jean Kapata: I had property also in Forest 27. That’s all that I can remember.
Nchito SC: You had property in Forest 27?
Jean Kapata: Yes.
Nchito SC: You’ve been explaining how you got it.
Jean Kapata: Yes, I also got it through the ministry of lands and natural resources.
Nchito SC: When?
Jean Kapata: My Lady, unless I look at the dates on the title.
Nchito SC: How big was your land in Forest 27?
Jean Kapata: Just three hectares.
Nchito SC: So, which newspaper, you said you applied for that piece of land in Forest 27?
Jean Kapata: Yes, My Lady.
Nchito SC: I would also have liked one, I didn’t see the advert. Which newspaper published the advert for Forest 27?
Jean Kapata: My Lady, it was not advertised.
Nchito SC: Now, you have correctly said you had land in Forest 27, correct?
Jean Kapata: Yes, My Lady.
Nchito SC: Are people allowed to own properties in forests?
Jean Kapata: My Lady, the land was degazetted.
Nchito SC: In the case of Forest 27, is it your testimony that the president in degazetting portions of Forest 27, did not consult you?
Jean Kapata: My Lady, he consulted me.
Nchito SC: So, when the public was up in arms complaining that Forest 27 should be protected, you went and got three hectares for yourself?
Jean Kapata: My Lady, I applied and I was given.
Nchito SC: You applied to who?
Jean Kapata: To the Commissioner of Lands.
Nchito SC: So, who interviewed you, madam?
Jean Kapata: The Commissioner of Lands, My Lady.
Nchito SC: Sorry?
Jean Kapata: The Commissioner of Lands.
Nchito SC: Alone?
Jean Kapata: Yes, My Lady.
Nchito SC: Where?
Jean Kapata: At the ministry.
Nchito SC: Where did you sit for this interview?
Jean Kapata: In my office, My Lady.
Nchitto SC: So, you summoned him to come and interview you?
Jean Kapata: Yes, My Lady.
Nchito SC: To your office to come and interview you?
Jean Kapata: Yes, My Lady.
Nchito SC: Madam, do you see how ridiculous that sounds? That a person who is supposed to be independent was coming to your office?
(Chinese gave me K1.4m cash for 3 hectares in Forest 27 – Kapata)
Nchito SC: Now, I told you that you sold this land in Forest 27 to a Chinese called Ling Li Xu, that name ring a bell?
Jean Kapata: Yes, My Lady.
Nchito SC: Who is he? It’s spelled Ling Li Xu. You sold this land, three hectares of land in Forest 27 to Ling Li Xu, a Chinese national, correct?
Jean Kapata: Yes, My Lady.
Nchito SC: And according to you, there’s no law that stops you from selling land to a foreigner in this country? I hope you had a chance to ask State Counsel at break.
Jean Kapata: My Lady, it’s a company.
Nchito SC: No. I am talking about a law that stops foreigners from owning land?
Jean Kapata: I am not sure, My Lady if there’s…
Nchito SC: Okay. You’ve answered, that’s all. Now, you sold this land to this company or this Xu. You are claiming to public records that you sold it for K1.4 million. That’s what you told the government, that you sold three hectares of land in Forest 27 for K1.4 million. Honourable, that’s what you declared?
Jean Kapata: Yes, My Lord.
Nchito SC: My Lady.
Jean Kapata: My Lady.
Nchito SC: How are you failing to call a fellow woman a lady? You were complaining that the defamation was degrading you as a woman.
Jean Kapata: My Lady, it’s my first time in Court. So, I am not privy.
Nchito SC: You sold three hectares in State Lodge area for K1.4 million? That’s what you told the State but is that what you actually sold the land for?
Jean Kapata: Yes, My Lady.
Nchito SC: That’s what you received?
Jean Kapata: Yes, My Lady.
Nchito SC: What would you say if I told you that in fact, land in that area, a hectare of land, not 7.4 hectares, an acre of land can cost you anywhere between K1 million to K1.4 million, one acre?
Jean Kapata: My Lady, I am not aware that that’s the prevailing figures.
Nchito SC: Who did the transactions for you? How did you meet this Mr Xu?
Jean Kapata: It was through my late husband, My Lady.
Nchito SC: So, it’s another case of Zambia recording one figure and China recording more than one figure? It’s not possible that you could have sold such valuable land Honourable Kapata for such an amount.
Jean Kapata: My Lady, that’s what it was.
Nchito SC: I put it to you that you got this land for free, basically K20,000 and even in selling, you want to defraud the state by not declaring the true value?
Jean Kapata: No, My Lady.
Nchito SC: What was the assessment from ZRA?
Jean Kapata: My Lady, I already mentioned that it was not done by myself but my late husband.
Nchito SC: Sorry? The land was in your name madam. Your late husband couldn’t have done the transactions. It’s not possible in law.
Jean Kapata: No. He was the one who was in the forefront, My Lady.
Nchito SC: So, he signed everything? You didn’t sign anything?
Jean Kapata: Yes, he did sign.
Nchito SC: Sorry?
Jean Kapata: Yes, he signed.
Nchito SC: He is the one who signed?
Jean Kapata: My Lady, I can’t remember.
Nchito SC: You said yes, he signed. So, which answer should go on record?
Jean Kapata: I can’t remember who signed.
Nchito SC: So, how did selling this land to Ling Li Xu, protect the forest?
Jean Kapata: My Lady, I don’t know.
