The Lusaka High Court has granted Gemcanton Investments Holding chief executive officer Eliezer Nefussy leave to challenge his deportation through a judicial review.

But the court has refused to stay his deportation of saying a court cannot stay an action which has already been taken.

In this matter, Nefussy had applied for leave to commence judicial review to challenge Home Affairs Minister Stephen Kampyongo’s decision to deport him to Namibia without being accorded an opportunity to be heard.

Nefussy, through his lawyer Dickson Jere of Mvunga Associates, had also applied that if leave was granted, it should operate as a stay of Kampyongo’s decision to deport him.

And in his affidavit, Nefussy stated that his deportation was instigated by his business associate, Abdoulaye Ndiaye.

In his ruling on Friday, justice Dancewell Bowa granted Nefussy leave to commence judicial review saying he had proven that he had an arguable case.

“Recent authority by the Supreme Court in the case of CK Scientific Group Zambia Limited vs Zambia Wildlife Authority now suggests that the Applicant for leave to commence Judicial Review also needs to show that he or she has an arguable case and some likelihood of succeeding in the substantive matter. Having duly considered the affidavit evidence in support of the application, I am satisfied that the Applicant has demonstrated that there is a question fit for further inquiry and that prima facie, he does have an arguable case. Thus, I find that the provisions of order 53 rule 3 and 4 have been complied with and I grant leave to commence Judicial Review proceedings,” justice Bowa ruled.

Justice Bowa, however, said he could not stay Nefussy’s deportation as the action had already been done.

“However, I am not persuaded to agree with counsel for the Applicant that the grant of leave must operate as a stay in this case for the simple reason that there is nothing to stay. The decision has been implemented. Counsel is in essence inviting the court to make an order akin to a mandatory injunction whose applicable principles are quite different from those of a stay in judicial review proceedings. For the above reasons, I would decline to grant the prayer that the grant of leave also operate as a stay,” said justice Bowa.