LUSAKA Principal Resident Magistrate David Simusamba has insisted that he enjoys judicial immunity from lawsuits arising from his exercise of judicial functions.

In this matter, NDC leader Chishimba Kambwili and his lawyers Cheelo Mwiinga and Christopher Mundia have sued Magistrate Simusamba in the Lusaka High Court for defamation for alleging that they attempted to bribe him in order to deliver judgement in Kambwili’s favour in the forgery case, which is before the Subordinate Court.

The trio is seeking a public retraction of the false and malicious allegations contained in a letter to the Chief Justice and an apology to them to their satisfaction in respect of all the defamatory utterances attributed to Magistrate Simusamba, among other claims.

However, in his application to have the matter dismissed on point of law, Magistrate Simusamba argued that no action could lie against a judicial officer in his or her capacity for acts done or words spoken by an adjudicator in the honest exercise of judicial office.

He submitted that the action by Kambwili and his lawyers was misconceived at law as he enjoyed judicial immunity, adding that he was not the right party to be sued as he was a government employee, and that the right party ought to have been the Attorney General.

And in his reply and skeleton arguments filed, July 30, 2020, Magistrate Simusamba insisted that he enjoyed judicial immunity from lawsuits.

“The subject matter of the suit herein arose in the course of criminal proceedings and the defendant being a presiding magistrate in the case enjoys judicial immunity from lawsuits arising from his exercise of judicial functions provided under section 55 of the Subordinate Court Act Cap 28,” Magistrate Simusamba stated.

“The first plaintiff (Kambwili) wrote a letter of complaint against me in my honest conduct of court proceedings as a presiding or sitting magistrate exercising judicial office in the criminal matter ‘The people v Chishimba Kambwili’ to the Hon Chief Justice and I enjoy judicial immunity.”

He stated that he was not an accused person in any criminal proceedings and that he had not been found guilty of committing any crime and further that a presumption of innocence applies to him.

“The Chief Justice is the overall superintendent of the Judiciary and exercises supervisory functions over me, among others, and my written response to her Ladyship’s letter to me following the first plaintiff (Kambwili’s) complaint was an administrative issue done with the strictest of privacy or confidence as stated in Kambwili’s letter to her Ladyship dated December 17, 2019, and her Ladyship’s letter to him dated January 22, 2020,” Magistrate Simusamba narrated.

“I wrote my letter to the Chief Justice in response to her memorandum to me concerning Kambwili’s complaint in my exercise of judicial functions as a sitting magistrate equally in confidence and the letters were not in public domain.”

Magistrate Simusamba further stated that the subject matter was not capable of being adjudicated upon by the Court as it was outside the jurisdiction of the Court.

“The defendant enjoys judicial immunity from lawsuits arising from his exercise of judicial functions. The defendant is still presiding over the criminal proceedings in the Subordinate Court in which Kambwili is an accused person. The Court has power to set aside a writ and or dismiss a matter where the subject matter is outside the jurisdiction of the Court,” he argued.

Magistrate Simusamba insisted that the suit against him was irregular as the plaintiffs ought to have sued the Attorney General.

He added that the plaintiffs had not indicated his residential address on the writ of summons and had further not indicated their postal and electronic addresses, which were also irregularities.

Magistrate Simusamba prayed that the Court grants his application to have the action against him dismissed.

But in their joint-affidavit in opposition to Magistrate Simusamba’s affidavit in support of summons for an order to dismiss the action on a point of law, Kambwili and his lawyers argued that soliciting for bribes did not include functions of a judicial officer as Magistrate Simusamba allegedly did, as it was a crime.

They added that Magistrate Simusamba could not hide under the wing of immunity.

“Soliciting for bribes does not include functions of a judicial officer as the defendant (Magistrate Simusamba) did, as the same constitutes a crime and the defendant cannot hide under the wing of immunity,” Kambwili and his lawyers stated.

They further stated that Magistrate Simusamba did not in any way enjoy judicial immunity for being allegedly corrupt because corruption was not one of the functions of a judicial officer.