Lusaka High Court Judge Anessie Banda-Bobo has declined to join Vedanta Resources Holdings Limited to the winding-up proceedings against Konkola Copper Mines (KCM), saying there’s no such procedure under the winding-up rules.
Justice Banda-Bobo observed that Vedanta was required to file a notice of intention to be heard on the winding-up petition, and only then could it be heard on any application.
This is the matter in which ZCCM Investments Holdings PLC is seeking an order to have KCM liquidated.
Justice Banda-Bobo granted ZCCM-IH an order to appoint Milingo Lungu of Messrs Lungu Simwanza and Company as provisional liquidator of KCM.
But Vedanta Resources Holdings Limited applied to be joined to the proceedings as second respondent, saying if not joined, it stood to suffer great prejudice with over 79 percent shares in KCM.
In an affidavit in support of ex-parte summons for an order for joinder, Vedanta’s representative, Hermien Uys of Stellenboach in South Africa, stated that Vedanta had invested millions of United States dollars in KCM with a view to realising a return on the investment over a period of time.
He added that as a majority shareholder in KCM, Vedanta stands to suffer great prejudice if the court ordered that the mining company be wound up without hearing it.
However, Bonaventure Mutale, a lawyer retained by the provisional liquidator on behalf of KCM, asked the court to dismiss Vedanta’s application with costs, saying there was no provision for joinder of a party at any stage of the proceedings.
He added that any person wishing to be heard on the petition was only required to filed the prescribed notice into court.
And in her ruling on the application for joinder, Thursday, justice Banda-Bobo declined to join Vedanta to the proceedings, saying there was no such procedure under the winding-up rules.
“In the premise, this court cannot order joinder of Vedanta to the proceedings before me as there is no such procedure under the winding-up rules. Due to the nature of the case, I make no order as to costs,” justice Banda-Bobo ruled.
She noted that a non-party who had an interest in winding-up proceedings was required to file a notice of intention to be heard on the winding-up petition, and only then could it be heard on any application before or during the hearing of the actual petition.
Justice Banda-Bobo further observed that a person who was a non-party could be heard on a winding-up petition once such a person had filed the requisite notice.
She added that the winding-up rules, as read with the Corporate Insolvency Act, adequately provided for the hearing of a non-party before and at the hearing of a winding-up petition.
“Once a person files their notice of intention to be heard at the hearing of the petition, section 60(3) of the Corporate Insolvency Act allows such a person to bring an application at any time, which in my view includes interlocutory applications prior to the hearing of the petition for winding-up. On such an application, the court can make a series of orders and note worthy is the the direction to hear any issue or matter,” judge Banda-Bobo said.
“This then defeats Vedanta’s argument that had they come by way of notice, they would have been precluded from being heard on the confirmation of the provisional liquidator and from bringing any other interlocutory applications that would wish to bring before court.”
