Mutembo explains how KCM liquidator is conflicted

Mutembo Nchito has told the Lusaka High Court that the Konkola Copper Mines-appointed provisional liquidator, Milingo Lungu has conflicts of interest and cannot act objectively in the matter because he was appointed by ZCCM-IH, a shareholder who happens to be his client in another active court case.

And Nchito has brought it to the attention of the court that after being appointed KCM liquidator, Lungu went ahead to now appoint Bonaventure Mutale who happens to be his co-counsel in that active ZCCM-IH court case, to be the lawyer for KCM under liquidation.

Further, Nchito who is former Director of Public Prosecutions, has told the court that while Lungu and the other KCM lawyers were opposing his appointment as counsel for KCM on grounds that he is conflicted for having acted on behalf of a client who sued the mine, the KCM liquidator is himself acting for a plaintiff who sued Konkola Copper Mines in 2016 a matter which still in court..

Last week, Konkola Copper Mines under the charge of provisional liquidator Milingo Lungu opposed the appointment of Messrs Nchinto & Nchito to represent the company in the winding up proceedings saying the law firm was conflicted.

This is the matter in which ZCCM Investments Holdings PLC is seeking an order to have KCM liquidated.

The liquidator-appointed KCM lawyers explained that their grounds for taking that stance was that on February 26, this year, a writ of summons accompanied by a statement of claim was issued against KCM on behalf of Barclays Bank Zambia for a sum of money in an action commenced in the Commercial Division of High Court.

“On the face of it, Messrs Nchito and Nchito are named as advocates acting for the plaintiff in that action (Barclays Bank Zambia) against KCM, which is the named defendant,” they stated.

KCM submitted that if Messrs Nchito and Nchito were not precluded from acting for the company which is the defendant in the said matter, there was a risk of confidential information obtained by the said advocates in the proceedings being disclosed to third parties, including Barclays Bank Zambia in that matter.

“In light of the Rules, the public interest in the proper administration of justice and protecting the judicial process, the respondent company (in provisional liquidation) contends that the circumstances compel this honourable court to direct or order that Messrs Nchito and Nchito are not permitted to represent or purport to represent the respondent company in the proceedings. The existencies of the administration of justice and the high standards of conduct demanded of legal practitioners precludes the named advocates from representing the respondent company,” they stated.

But in response, Nchito produced records which show that Lungu and Mutale are currently acting for ZCCM-IH while the liquidator actually is also acting on behalf of a client who sued KCM while complaining about Nchito and Nchito having acted for Barclays.

Nchito went on to explain that,
“In response to paragraph 5 and 6 of Mr Milingo Lungu’s affidavit in support of motion to raise preliminary issues, I confirm that Messrs Nchito & Nchito advocates no longer act for Barclays Bank Zambia PLC under cause number 2019/HPC/0069,” he stated.

“As an officer of the court, I am obliged to bring the following information to the attention of this honourable court: (a) Mr Milingo Lungu’s firm currently acts for the plaintiff namely Betty kangote against the respondent (KCM) for which he has been appointed provisional liquidator. There is now produced and shown to me marked “MN2”, a copy of the writ of summons and statement of claim under cause number 2016/HP/1518. (b) The provisional liquidator, Mr Milingo Lungu acts for the petitioner in a matter that is active in court alongside Mr Bonaventure Mutale, State Counsel. There now produced and shown to me marked “MN3” a copy of the summons filed by Messrs Elis & Co under cause number 2016/HPC/0515, showing the law firms acting for the petitioner herein” stated Nchito.

“(c) Having been appointed provisional liquidator of the respondent, at the suggestion of his client ZCCM-IH, the provisional liquidator, Mr Milingo Lungu has now appointed Mr Bonavebture Mutale, State Counsel, his co-counsel in their work for ZCCM-IH in the matter in paragraph “B” as lead counsel for the respondent.”

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