The Nevers Mumba-led MMD acting national secretary Winnie Zaloumis escaped a seven-day imprisonment after she reversed her earlier decision of refusing to answer a question during cross-examination in the matter involving the party’s leadership wrangles.
Earlier, a lawyer representing the Felix Mutati-led MMD, Jonas Zimba, asked the court to send Zaloumis to prison for seven days for refusing to answer a question rightly put to her.
In this matter, Zaloumis has sued Mutati, Mwansa Mbulakulima, Raphael Nakacinda and George Kangwa in the Lusaka High Court, challenging the legality of the convention that was held in Kabwe that elected Mutati and others into office.
When the matter came up before High Court Judge Sharon Newa for cross-examination, Wednesday, Zimba asked Zaloumis when Reuben Sambo became MMD national secretary, but in response, the witness said she didn’t remember.
Asked again when Elizabeth Chitika became national secretary, Zaloumis said the party had a meeting at Ibis Gardens on March 14, 2016.
But when asked whether that’s where Chitika became national secretary, Zaloumis chose not to answer.
And when Zimba insisted three times, Zaloumis said, “I choose not to answer I’m here as national secretary,” she said.
This prompted Zimba to make an application, requesting that Zaloumis be sent to prison for seven days for refusing to answer a question.
“Your honour, I have an application to make pursuant to section 150 of the CPC for this witness to be sent to prison for seven days for refusing to answer a question rightly put to her. The law is settled on this issue and I pray that she be dealt with…,” Zimba said, before he was interrupted by the lawyer representing the Nevers Mumba-led MMD, Jeah Madaika.
Madaika observed that the section that Zimba was quoting in the CPC was for criminal proceedings, not civil.
He added that the witness had a right to decline when she was not sure about the evidence she was asked to give.
And Madaika said there was no provision in civil proceedings to incarcerate a witness for failure to give evidence, adding that the provision was quoted out of context.
“The section he’s quoting in the CPC is for criminal proceedings, this is a civil case. She has a right to decline when she’s not sure about the evidence she’s asked to give. There’s no provision in civil proceedings to incarcerate a witness for failure to give evidence. The provision has been quoted out of context. The application lacks merit and we pray that it should be dismissed,” Madaika said.
But in response, Zimba argued that the provision was correct because it was all-encompassing, adding that the act of declining to answer a question was criminal in itself.
“The act of declining to answer a question is criminal in itself. This witness has refused to answer a question properly put to her. I pray that the court deals with the witness in the appropriate manner set out at law so as to ensure that witnesses don’t waste the court’s time,” Zimba said.
At this point, Judge Newa reserved ruling on the application to 14.00 hours on the same day.
And when the matter resumed, Judge Newa said the refusal to testify was punishable as contempt of court.
She added that the consequences of refusing to answer a question was that; the court may adjourn the matter for a period not exceeding eight days to which that person would be committed to prison, unless they consented sooner to do what was required of them.
“I have considered the application and section 151 of the CPC states that whenever any person being present in court, refuses to be sworn, or having being sworn refuses to answer any questions put to him or her, neglects to reproduce any document, which he is required to…. the court may adjourn the case for a period not exceeding eight days, and may in the meantime commit such person to prison unless he sooner consents what is required of him,” Judge Newa said.
And Judge Newa said the provisions of the CPC were applicable in civil proceedings and, therefore, Zimba’s reliance on section 150 of the CPC in making the application was appropriate.
She, thereafter, asked Zaloumis to go back to the witness stand and asked her whether she had refused to answer the question put to her.
In response, Zaloumis said she was willing to answer the question.
And when Zimba continued with his cross-examination, he reiterated his earlier question on whether Elizabeth Chitika was still national secretary.
In response, Zaloumis said Chitika was not national secretary.
Meanwhile, Zaloumis admitted that there was no harmony in MMD and further added that the Nevers Mumba-led MMD was legal.
The matter has been adjourned to November 29, at 10:00 hours.